Britannia Parking Tickets x 2

Coupon-mad

Jonesy73 wrote: »

they do seems of have missed off some of the POFA wording, so hopefully i can appeal successfuly

Britannia use a fairly POFA-compliant NTK these days. No POFA words 'missed' usually. Don't waste time on whether they've said they are the creditor, or that they haven't stated the period of parking. Nope.

The idea on this forum, is to hit them with a very loooong 'kitchen sink' POPLA appeal with everything you can throw at it (see the NEWBIES thread post #3) which sees off lots of PPCs who just cancel and save themselves time & the POPLA fee.

But even if someone loses at POPLA, you still don't actually PAY!

Jonesy73

Thanks very much chaps - very much appreciated
Here is my planned POPLA appeal - any feedback very gratefully received.
Key questions
- should i included the photo's and descriptions as evidence?
- if my paragraph 8f issue relevant (they definitely didn't include that wording in the NTK).

thank you very much for any feedback.

Dear POPLA,
PCN Number: xxx
POPLA Verification Code: xxx

I write to you as the registered keeper of the vehicle XXXX, I submit the reasons below to show that I am not liable for the parking charge of £70 issued by Britannia Parking at XXXX, XXXXX.


1) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

2) Britannia’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA).

3) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

4) No evidence of Landowner Authority

5) No Contract was entered into between the Britannia Parking and the Driver or Registered keeper



1) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge parking 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:

LINK INSERTED HERE

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:

LINK INSERTED HERE

This site at Dorking Waitrose, 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, often obscured and missing from many areas. They are unremarkable and not immediately obvious to drivers entering the car park and store.
There is one very small sign on entry to the car park but it is not legible to drivers on what is a very busy junction. The sign has a dark grey background with small white lettering. In fact, I doubt most careful and road-abiding drivers would even notice the presence of this sign if they had their eyes on the road and the busy junction.

PHOTO INSERTED HERE

There are no warning signs for people exiting the car park to access the supermarket via the stairs (as many shoppers do).

PHOTO INSERTED HERE

Furthermore, there are no parking warning signs for people exiting the store to return to the car park via the stairs (as many people do).

PHOTO INSERTED HERE

In fact, the only signs warning of parking restrictions and a possible fine are located by the lifts. However, there is just one warning sign on each floor, which is located by only one of the three available lifts. Please note that these parking signs are identical in colour, shape and size to many other general signs in the car park.

PHOTO INSERTED HERE

In addition to the colour, shape and size of the parking signs being identical to other signs in the car park, the font on them is very small and the parking terms and wording is mostly illegible, being crowded and cluttered with a lack of 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

PHOTO INSERTED HERE

As if that were not bad enough, the only warning of a potential fine has very clearly been altered with some sort of supplementary sticker which could very well have been the work of pranksters or a non-legitimate party.

PHOTO INSERTED HERE

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 (less than 1cm high). Added to this, the notice of a charge has very obviously altered by an unknown person at an unknown time, raising doubts over the legitimacy of them.

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.''

Having investigated this car park in detail, it’s clear that very large areas of the site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large (and unaltered) lettering - so it cannot be assumed that a driver could read a legible sign, or that they parked near one or that they walked past one when entering the store or leaving the store.

LINK INSERTED 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:

LINK INSERTED 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 less than 1cm, showing the terms and the 'charge' placed by only one of three lifts and missing completely from the stair cases and in far too crowded small print and with obvious alterations is woefully inadequate in an very busy supermarket car park.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency'

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

LINK INSERTED HERE

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.


2) Britannia’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA).

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11, and 12.

Conditions that must be met for purposes of paragraph 4

5(1)The first condition is that the creditor—
(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but
(b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.
(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.
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; or
(b)has given a notice to keeper in accordance with paragraph 9.

Specifically, Britannia Parking have failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 8f, which stipulates:

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;

On the NTK that Britannia Parking sent to me they have not used the correct language as specified in POFA paragraph 8f. No such warning was included in the wording.

Further, this is a charge that could only be potentially enforced against a known driver. The driver has never been admitted and there is no evidence as to the identity of that individual, which brings me to point #3:


3) The operator 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 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 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 Britannia Parking, as 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.

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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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

As Britannia 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 Britannia Parking 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 Contract was entered into between Britannia Parking and the Driver or Registered keeper

Although I was not the driver of the event, I would like to point out that 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. Britannia Parking 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.

It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of Britannia Parking 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 Britannia Parking 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.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them and/or enter the only lift on each floor that had the terms of the parking. None of which ever actually happened.

I request that Britannia Parking 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 things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.



I look forward to hearing your response on this appeal.

Yours faithfully

Coupon-mad

It would be 8(2)f and is worth including as long as there was a windscreen PCN on the car. If not, then it's 9(2)f that applies from para 9 of Schedule 4, not para 8.

But if you never got the actual first postal PCN you can't be sure it didn't include the warning. But I would still include it all and throw the kitchen sink at it.

Re the other one, did it only arrive this week, after Christmas (past day 15 then?).

Jonesy73

Thank you for replying.
Both tickets were postal - not put on my windiscreen, so I think it’s the 28 day rule, rather than 15 days?

None of the letters say that the keeper is liable after 28 days, which is where I think it fails POPLA 8(2)f.

I’m struggling to see how 8(2)f and 9(2)f are different.....and which one I should quote?

Last question - is my description of the parking signs ok as it is?

Many thanks for your help !

Coupon-mad

Really? 8(2)f and 9(2)f describe different things entirely.

The Schedule makes it clear enough that para 8 is about a windscreen PCN followed a month later by a postal NTK, whereas para 9 is all about serving one PCN (NTK) document by post, which must arrive by day 15 if a keeper is to be liable.

Jonesy73

sorry if i'm appearing a little unobservant....

thank you for pointing me towards the correct us of 9 though - very much appreciated

Coupon-mad

Coupon-mad wrote: »

It would be 8(2)f and is worth including as long as there was a windscreen PCN on the car. If not, then it's 9(2)f that applies from para 9 of Schedule 4, not para 8.

Kind of thought it was clear (above) - I also think Schedule 4 is clear and am surprised you don't see it.

This is easy, schedule 4 is easy to read in plain English. Not sure why anyone struggles with it.