Ticket for causing obstruction.

Kreatop

Hi, i'm looking for an advice, can parking ticket from private parking company for obstruction/hindrance be fought on same grounds as everything else, or is it a special case ? Thank you in advance.

KeithP

Hi and welcome.

Certainly at this stage, it's fought on same grounds as everything else.

Have a read of the NEWBIES FAQ sticky thread.

In particular, post #1 of that thread covers the first stage and you will see one of the first sentences there includes:

THESE CASES ARE ALL THE SAME.

Who is the private parking company?

Kreatop

Thanks for quick reply, parking company is NCP.

KeithP

Just send off the blue text appeal from post #1 of the NEWBIES thread. No need to change it at all nor add anything.

Appeal as the keeper. Do not give away any clues to who was driving.

See what you are up against:

www.bmpa.eu/companydata/National_Car_Parks.html

Around 170,000 tickets issued in the last three years but just nine court hearings.

Kreatop

Thanks again, information you've linked is definitely reassuring.

peter_the_piper

Just to be prepared get pics of the signs to have a record of what they say about "obstruction".

DoaM

Can you contractually agree to cause an obstruction?

Kreatop

Hi, some time ago after appealing online as keeper of the vehicle using template on website this reply was received by email:

4 January 2018
Dear xxxxxx,

Re: xxxxxxx issued at xxxxxx on xxxxxx to vehicle with registration mark xxxxxxx

Thank you for your recent correspondence regarding the above notice number. We have considered the case carefully and have decided to reject your appeal on the following grounds;

The parking attendant observed and recorded that the vehicle was parked causing an obstruction.

The legislation allows the DVLA to disclose information to those who have a legal right to receive it. By the details recorded by the parking attendant we were able to contact the DVLA and ascertain the register keeper details of the vehicle.

Following the introduction of the Protection of Freedoms act 2012 on the 1st October 2012 lobbying by the BPA the Bill introduces a duty on the keeper to identify the driver providing a serviceable address when enquiries are made by the landowner or his agent. Failing this the keeper becomes liable for any parking charges due as a result of the breach of contract or trespass.

The Terms and Conditions of which our services are provided are clearly displayed on entrance and throughout our facilities, including the requirement for all motorists to park within the markings of a designated bay. We are confident that all signage and the PCN are compliant with all industry standards and to the British Parking Association's code of practice to which we subscribe.

You now have the following options;
Pay the Parking Charge Notice at the discounted amount of £60.00 within 14 days. Please note that after this time the Parking Charge Notice will increase to the full charge of £100.00.
Payment can be made:
* Online, by visiting xxxx
* By sending a cheque or postal order, made payable to National Car Parks Ltd to: National Car Parks Ltd. Notice Processing, PO Box 839, Northampton, NN4 4AL.
* By Debit or Credit card (except American Express). Please call 0345 452 7780 and have your card details and the information held in this letter to hand.

Alternatively, you can make an appeal to POPLA - The Independent Appeals Service. If you wish to make an appeal to POPLA the forms are available on the website at popla. co. uk The verification code you will need in order to appeal to the Independent Appeals Service is xxxxxxxx. Please note that if you opt for independent arbitration of your case you will lose your opportunity to pay the discounted offer and the full amount of the parking charge will apply. Your appeal to POPLA must be made within 28 days of the date of this letter, any appeals to POPLA made after the 28 days will not be assessed. The independent adjudicator is unable to waive the parking notice because of mitigating circumstances and a decision will be based on facts and evidence only. If you have any trouble in appealing or cannot access the website please contact us on 01604 625 622.

By law we are also required to inform you that Ombudsman Services ombudsman-services provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.
Yours sincerely,
Notice Processing Team
National Car Parks

As next step would be POPLA appeal i do have couple of questions:

1) Could i use absence or inadequate visibility of the actual bay markings as one of the appeal grounds as well as inadequate signage across the parking especially at the entrance as its sharp 90 degree turn from 30 mph busy main road and only sign with terms and conditions is present at the entrance and it is written in small print and actually cant be read on the approach ?
2) Is actual reply received considered as NTK ?

Thanks a lot. :beer:

claxtome

1) Could i use absence or inadequate visibility of the actual bay markings as one of the appeal grounds as well as inadequate signage across the parking especially at the entrance as its sharp 90 degree turn from 30 mph busy main road and only sign with terms and conditions is present at the entrance and it is written in small print and actually cant be read on the approach ?

Yes

2) Is actual reply received considered as NTK ?

No
If you received your PCN (Parking Charge Notice) through the post, rather than on the day attached to the car, that is your NTK.

HTH

Coupon-mad

Kreatop wrote: »

Hi, i'm looking for an advice, can parking ticket from private parking company for obstruction/hindrance be fought on same grounds as everything else, or is it a special case ? Thank you in advance.

Must have been a windscreen PCN, in which case if you were then sent no NTK, you win at POPLA on 'no NTK'.

That's pre-written as a template point, among others you should also throw in for good measure, all posted for you to copy & build a POPLA appeal, in the NEWBIES thread post #3. Show us the points you put together; the no NTK one goes first, followed by the one about the appellant not being shown to be the individual liable, then signs, then landowner authority.

Kreatop

Coupon-mad, indeed it was served as windscreen PCN.

I've put together draft of POPLA appeal and would appreciate any thoughts about it, thanks again all who replied you are amazing.


POPLA number:
Vehicle registration number:


Dear Sir or Madam,

I write to you as the registered keeper of the vehicle , I wish to appeal the £100 parking charge notice (PCN) issued by NCP.

The appeal was rejected from by NCP on the grounds that the requirements for motorists to park within the markings of a bay without causing an obstruction and the charges for not doing so are clearly displayed on entrance and throughout the facility of Leicester Granby Halls carpark.

I do not believe that this is the case. Below is the appeal report I have complied to be overlooked by an POPLA assessor.

Thank you for your time in advance.

I submit the reasons below to show that I am not liable for the parking charge:

1.The signs and bay markings in this car park are not prominent, clear or legible from all parking spaces
2. A compliant Notice to Keeper was never served - no Keeper Liability can apply
3 The operator has not shown that the individual who it is pursuing is in fact the owner who may have been potentially liable for the charge
4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice



(The images are included in the actual document)

1. The signs and bay markings 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:

xxxxxxxxxx

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:

xxxxxxxxxxxxxxx

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:

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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

xxxxxxxxxxxxxxxxxxxxxxxxxx

''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:

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

''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:

xxxxxxxxxxxxxxxxxxxxxxxxxx

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 and bay markings 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.


-Images with comments of actual signs and bay markings of the car park taken by myself will go here.

2. 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.



3. The operator has not shown that the individual who it is pursuing is in fact the owner 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 owner 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 owner 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 owner, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.



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




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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point. Thank you for your time and many thanks for looking over this appeal.

Yours faithfully,

Registered keeper of the vehicle.