Help with Popla appeal

TattieHead

Hi


I am looking for some help before submitting my Popla appeal.


I recently received a NTK stating that a PCN was issused to my vehicle whereby the driver had become liable for a parking charge for Abused Patron parking.


I Appealed the Charge, stating that the car was parked correctly and not causing any obstrustion while an occupant of the vehicle was in store. I also sent them a copy of the receipt from store.


Suprise, Surprise, they rejected the appeal stating that the operative on duty observed the vehicle parking in the location and then witnessed the driver leaving the site.


I have drafted the following Popla appeal but feel it may be getting out of control.


i would be grateful if anyone could advise if it is going in the right or wrong direction before i submit.












Dear POPLA,


I am the registered keeper of the Vehicle with registration number XXXXXXX and I wish to appeal the decision reached by Care Parking on PCN Number XXXXXX


1) Witness Evidence on which they base their allegation
2) NTK is not compliant with the POFA 2012 statutory wording.
3) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
4) Lack of standing/authority from landowner
5) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself


1 - Witness Evidence on which they base their allegation


Although I have provided CareParking with a copy of the shop receipt (attached for your perusal) from the day when the vehicle was issued with a parking charge notice, they don’t seem to acknowledge this at all.
Instead they would rather allege that the operative on duty observed the vehicle parking in the location and then witnessed the driver leaving the site.

I ask that the assessor puts them to strict proof as to:

a. a full description of the driver. Gender, height, age, race, clothing etc.

b. Given the operator's requirement to, at all times, minimise their losses, what steps the member of staff took at the time to minimise those losses.

c. The adequacy and contemporaneous nature of the notes that member of staff intends to rely upon.

d. The distance the observations were made over, a description of the lighting conditions and details of how crowded or otherwise the area was.

e. Details of any aid to vision the staff member used and what authorisation they had for their use within the terms of the Regulation of Investigatory Powers Act together with details of the reviews of such authorisations from their instigation up to the point of the alleged observation.

f. Whether any notes were made as the result of direct observation or as a result of contemporaneous viewing of CCTV images and if the latter the assessor is asked to require production of those images.


2 - NTK is not compliant with the POFA 2012 statutory wording.


The Notice To Keeper that I received from CareParking does not:

a. clearly state on what land the car was parked, merely that the driver became liable for a parking charge at Chalon Way. It does not state what part of Chalon Way or even where Chalon Way is.

b. The period the car was parked. It only states the date and time that the parking charge was issued and that it has not been paid.

c. Nowhere does it provide details of any discount for payment within 14 days, whenthe Discount should be at least 40% of the full charge under the BPA Code of Practice. The Notice To Keeper merely states that the Parking Charge Notice is overdue and that I should pay the charge of £100 now, which I find both abrupt and intimidating in nature.
It does however advise on the back of the Notice To Keeper that if I decide to appeal to the IAS and are unsuccessful I will lose the right to pay at the reduced amount. I find this strange considering the fact that no reduction was offered on the Notice To Keeper.


Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
•Which car the ticket relates to
•What land the car was parked on
•The period the car was parked
•Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
•State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when
•Specify the outstanding amount of the parking charge and of the maximum additional costs they may seek to recover, and of the dispute resolution arrangements
•Invite the registered keeper to pay the outstanding parking charge or, if he was not the driver, to provide the name and address of the driver and to pass a copy of the notice on to that driver
•Identify the “creditor” who is legally entitled to recover the parking charge
•Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.
•Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only)
•Date of the notice

Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.


3 - The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge


In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with 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.''


3 - Lack of standing/authority from landowner


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


There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

Link

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

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:

Link

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

Link

''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

''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:

Link

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.







This concludes my appeal and I respectfully request that my appeal is upheld and the charge is dismissed.

Yours,














Thanks in advance for any help.

Coupon-mad

In #1 you should ask for:

- photographic evidence of the driver leaving the site, and
- a map showing the boundary of what constitutes 'the site' and
- where on their signs, this boundary is communicated to drivers

and attach a copy of that receipt (in fact embed it into the word document in #1).


You need to adjust your points about the NTK, because this suggests the NTK was served in time (between day 29 and day 56) following a windscreen PCN, and as such there does not have to be a discount offered, because that was on the PCN:

Nowhere does it provide details of any discount for payment within 14 days, whenthe Discount should be at least 40% of the full charge under the BPA Code of Practice. The Notice To Keeper merely states that the Parking Charge Notice is overdue and that I should pay the charge of £100 now, which I find both abrupt and intimidating in nature.
It does however advise on the back of the Notice To Keeper that if I decide to appeal to the IAS and are unsuccessful I will lose the right to pay at the reduced amount. I find this strange considering the fact that no reduction was offered on the Notice To Keeper.

TattieHead

In #1 you should ask for:

- photographic evidence of the driver leaving the site, and
- a map showing the boundary of what constitutes 'the site' and
- where on their signs, this boundary is communicated to drivers

and attach a copy of that receipt (in fact embed it into the word document in #1).




Thanks Coupon-mad,




I was thinking along those lines, as to where the site boundaries are. As far as I can see from visiting to look at the signs, it does not state anything about where the site is or when or if you are leaving the site.
The sentence about leaving the site on the signs is also on the extremely small font size, if that makes a difference.




You need to adjust your points about the NTK, because this suggest the NTK was served in time (between day 29 and day 56) following a windscreen PCN, and as such there does not have to be a discount offered, because that was on the PCN:




Would you suggest I remove this or leave it in?




As far as I can see, the NTK arrived about day 45, just that I thought they MUST offer the discount to the keeper on the NTK. Also a funny thing I seen on the signs was that they state "PCNs issued at this location will be issued by post". Nothing about windscreen PCNs, so my question is why are they issuing windscreen PCNs?




Thanks Again.

Coupon-mad

As far as I can see from visiting to look at the signs, it does not state anything about where the site is or when or if you are leaving the site.

They never do! Ever. Nor do they have photos of the driver. That's why you throw it in.

As far as I can see, the NTK arrived about day 45, just that I thought they MUST offer the discount to the keeper on the NTK.

No, not if there was a windscreen PCN, was there?

a funny thing I seen on the signs was that they state "PCNs issued at this location will be issued by post".

Interesting, worth throwing in to muddy the waters! Always embed your photos to POPLA into a single appeal document, so it's like an illustrated story, easy to follow.

TattieHead

No, not if there was a windscreen PCN, was there?


The Photos on PayCareParking webite appear to have one on, so I guess this cant be denied... Guess I'll just throw in that the signs state "PCNs issued at this location will be issued by post" and see what they make of that...

Coupon-mad

OK and you need to adjust what you are saying about the NTK, as it clouds the issue if some is wrong.

Only refer to paragraph 8 (not 9), do not mention the deadline (because they met it for the NTK's service) and focus only on real issues in wording.

Umkomaas

Here are some background issues you should be aware of in dealing with this. It’s almost 6 years since a private parking company ‘leaving the site’ case ever got to court. I doubt any solicitor with a self-respecting toothbrush would ever touch such a case again.

http://forums.pepipoo.com/index.php?act=attach&type=post&id=16231)

If this should go pear-shaped at POPLA, I’d invite Care Parking to issue court proceedings - should they find a sol prepared to represent them. Mention Ibbotson in your request! :cool:

TattieHead

Hi again and thanks to Coupon-mad and umkomaas for their replies.


Sorry its been a couple of days since my last post but I managed to get my ip address banned by MSE, something to do with the amount of characters and way I was posting. hopefully this wont happen again.


I was thinking about inserting the following into my Popla appeal then moving the rest down. Don't want to post the whole appeal incase I get another ban...


Thoughts please.


2 - Windscreen PCN is not valid


After visiting this car park and viewing the signs myself, I contest the validity of the windscreen

PCN as their signs state that "Parking charge notices issued at this location will be issued by post".

So my question would be, that if their signs state this, why are they issuing windscreen PCNs at all?

Surely CareParking should be complying with their own signs first and foremost.


3 - NTK is not compliant with the POFA 2012 statutory wording.


SCHEDULE 4 (Recovery of unpaid parking charges) states:


8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—

(i)specified in the notice to keeper, and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(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;

(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;

(i)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).

(4)The notice must be given by—

(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.

(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—

(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and

(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.


In my opinion the highlighted conditions above have not been met in Notice To Keeper received from CareParking (Attached is copy of NTK received, for your perusal).

TattieHead

Sorry I got a bit over zealous with the highlights, the NTK does have my car registration on it

KeithP

To avoid being locked out again, do not try and copy direct from word.

Copy first to notepad, then copy to here.

TattieHead

Thanks Keith, that's what MSE think was the problem too. Apparently it flags as spam if you copy and paste such a large document direct from word, due to the formatting or something like that.