Do i need to name the driver of the vehicle to appeal parking charge notice

Coupon-mad

Remove this completely. NEVER mention loss, or you will be looking at a loss!:

Unjustified loss
The amount that Elite Management (midlands) LTD are trying to charge is also not based upon any commercially justifiable loss to their company or the landowner. The car was only parked for a few minutes which would not result in a £60 or £100 loss. The trip was to pick up an item from a shop nearby Talbot street and therefore the car was parked on Talbot street as would only be there for a few minutes. Further to the fact that this would not have caused a £60/£100 loss, there was also a Waitrose Lorry trying to manoeuvre in another part of Talbot street when the car was left in Talbot street meaning that the street was actually blocked and cars could not pass. On return to the car the Waitrose lorry was still manoeuvring in Talbot Street meaning the road was still being blocked and therefore cars could not freely pass meaning that other drivers would not have been able to access any space on the side of Talbot street.

And after your point #1, just use the usual templates about signage, no landowner authority, and no keeper liability (if you have never been sent a NTK and appealed only against a windscreen PCN?) and finally, the one about the appellant not being shown to be the individual liable.

These are all already written to copy & paste, in post #3 of the NEWBIES thread.

Seeing as you were careful to appeal as keeper I am amazed you missed the entire point of appealing that way, which is so you can use 'no keeper liability' as a POPLA argument.

Why else does any newbie think we do this, not or fun, but to pave the way to win at POPLA.

sparkles100

Loadsofchildren123 wrote: »

I can see you've complained, but personally I would also write to the PPC and point out that they are completely wrong, and tell them you've complained. to BPA/DVLA.

sorry who are the PPC?


the BPA came back and Steve said he would let his team deal with it. The team said they would contact Elite and come back to me. they never did but then a rejection letter came through the post with my POPLA code. I have drafted my POPLA appeal in this thread for help

KeithP

sparkles100 wrote: »

sorry who are the PPC?

Re-read posts #3 and #4 - where you told us it was Elite Parking (Midlands) Ltd.

Coupon-mad

sorry who are the PPC?

Typical acronyms are all explained in the NEWBIES sticky thread, where you also need to get the POPLA appeal templates from. You will find this hard if you don't read the sticky thread telling you how to win!

sparkles100

Coupon-mad wrote: »

Remove this completely. NEVER mention loss, or you will be looking at a loss!:



And after your point #1, just use the usual templates about signage, no landowner authority, and no keeper liability (if you have never been sent a NTK and appealed only against a windscreen PCN?) and finally, the one about the appellant not being shown to be the individual liable.

These are all already written to copy & paste, in post #3 of the NEWBIES thread.

Seeing as you were careful to appeal as keeper I am amazed you missed the entire point of appealing that way, which is so you can use 'no keeper liability' as a POPLA argument.

Why else does any newbie think we do this, not or fun, but to pave the way to win at POPLA.

Hi


well I first used the template on money saving main site but only really looked in forums when Elite were messing about with me submitting my appeal. I found the posts saying not to submit appeal until day 26 but I submitted mine about 11 days after the appeal. I am kicking myself now!! This means that to make my POPLA appeal within 28 days I will have only reached 50 days for them to give notice to the keeper and I read it has to be 56 days. Can I still use the notice to keeper now in my appeal to POPLA?


I think I have found the templates you told me to go to and I have literally copied and pasted them. I added in the end of the signage one that I have actually taken photos of entry to car park and surrounding area of where car was parked and there were no visible signs. Can you tell me if I have included the correct information templates? I am guessing I don't need to edit them in anyway?


I couldn't find a link for incorrect information being listed on the notice as they have referenced incorrect street car was on, is this in the same part as the other templates?







I am the registered keeper of the vehicle in question and my appeal is regarding a parking ticket unlawfully and unfairly issued where the car was parked for less than five minutes in an area that was believed to be fine to park. The reasons for the appeal are the following:

• Incorrect detail on notice

Firstly the parking attendant has referenced that the car location was ‘Victoria Passage, Stourbridge’ on the notice. Victoria Passage is a pedestrian walkway in which there are bollards at the front of this walk way to prevent cars entering so the car could not have been parked there. The parking ticket is stating that the car was parked in Victoria Passage, Stourbridge, when the car was in fact parked in Talbot Street therefore meaning they had no authority to issue a ticket. Elite Management (midlands) LTD have no proof of the car being parked in Victoria passage and ignored my request in my appeal to prove that the car was parked in Victoria passage. I however, provided them Google images of the street that the car was parked in was shown as Talbot street and Victoria passage was shown as a pedestrian walkway between buildings. It is stated in Elite Management (midlands) LTD rejection letter that my appeal has been rejected as there was unauthorised parking on the day in question yet they have put on the parking charge notice that the car was parked in Victoria Passageway when this would not have been possible and the car was in fact in Talbot Street.

• Lack of Signage and inadequate signage

There were no signs on entry to the street and no visible signs in front or to the side of the car, where the car was parked. On return to the parked car the ticket was seen on the window screen and only then was a sign for parking restrictions spotted which was one sign, high up on the wall behind the car, over to the left side of the car so was not directly behind the car either. (as seen in the angle of photo that was taken by parking attendant, the sign is high up on the wall and no sign directly behind the car– see below). The car was reversed parked and has reverse cameras in the car to assist parking so no signs were spotted getting out of the car as there was no signs in front of the car or to the sides of the car as seen in photo evidence.


There was insufficient clear signage in the car park meaning that no contract could be formed with the landowner and the ticket was issued illegally. After seeing the ticket it was noted that there were plenty of other cars parked with no parking charges issued. Reason for issue of ticket is referenced as ‘no permit’ yet other cars were not seen with permits and they had not been given a parking charge. There were no defined parking bays either and as no signs were visible on entry to the car it was believed that the car was fine to be parked on the side of the street. Elite Management (Midlands) LTD have referenced in their rejection letter that my appeal was declined as there is signage displayed around the site, yet from both their photo evidence and my own photo evidence it is clear there isn’t signage displayed around the site so therefore it was unclear that the place the car was parked was restricted and there were also no bays to show restricted parking either. They were only able to take a photo of one sign and the rest of their photos are mainly focused on the car not showing the surrounding area as there are no visible signs. In my photos you can see that the surrounding area clearly shows lack of signage. Further to the lack of signage you can also see in the photo evidence that the writing regarding the charges for parking without permit are very small and therefore is not legible and as mentioned before is high up on the wall. The sign displayed does not meet the requirements for ‘large lettering’ and prominence as established in ParkingEye Ltd v Beavis and therefore 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:

http://imgur.com/a/AkMCN

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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking+sign_001.jpg

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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.





I have shown in my own photos from driver perspective that there are no clear/legiable signs on entry to the car park or from the front of the car once parked











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








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.

Coupon-mad

Your incorrect information point can be your own words, but you could also mention in point #1 that the location is a mandatory requirement of a Notice to Driver and must be repeated in a Notice to Keeper (which to date has never arrived).

I found the posts saying not to submit appeal until day 26 but I submitted mine about 11 days after the appeal. I am kicking myself now!! This means that to make my POPLA appeal within 28 days I will have only reached 50 days for them to give notice to the keeper and I read it has to be 56 days. Can I still use the notice to keeper now in my appeal to POPLA?

Of course you must!

I found the posts saying not to submit appeal until day 26 but I submitted mine about 11 days after the appeal. I am kicking myself now!! This means that to make my POPLA appeal within 28 days I will have only reached 50 days for them to give notice to the keeper and I read it has to be 56 days. Can I still use the notice to keeper now in my appeal to POPLA?

POPLA codes last for 32 days, so submit it online on that day (honestly, it will work). That way by the time they see your appeal from POPLA, they will not have time to get a NTK in your hands by day 56.

sparkles100

Coupon-mad wrote: »

Your incorrect information point can be your own words, but you could also mention in point #1 that the location is a mandatory requirement of a Notice to Driver and must be repeated in a Notice to Keeper (which to date has never arrived).


Of course you must!

POPLA codes last for 32 days, so submit it online on that day (honestly, it will work). That way by the time they see your appeal from POPLA, they will not have time to get a NTK in your hands by day 56.

thank you for you help, very much appreciated. this can get complicated so you have really helped me. I will tidy up my draft appearance now and save to submit on the last day.


one last question, do you know if POPLA limit the amount of photo evidence you can add in or shall I put in all the photo evidence in my word document and then save as a PDF and submit that way?

Coupon-mad

No limit because it will all be in one PDF attachment.

sparkles100

Coupon-mad wrote: »

No limit because it will all be in one PDF attachment.

Hi


I am just doing my POPLA appeal and it's saying to select the reason you are appealing. Should I select the option of I was not the driver at the time as I have declined to name the driver and will be appealing part of my grounds as no NTK served yet, regardless of whether I was or not?

sparkles100

sparkles100 wrote: »

Hi


I am just doing my POPLA appeal and it's saying to select the reason you are appealing. Should I select the option of I was not the driver at the time as I have declined to name the driver and will be appealing part of my grounds as no NTK served yet, regardless of whether I was or not?

also I have seen posts in the newbies thread about attaching the PDF and the boxes that are there to fill out. Do I still fill the boxes out as well as attach the PDF as I cant seem to find a post that makes this clear? There is an evidence file attach for each box I am taking it I just put the PDF letter I have done in there. I have attached all my photos within the text of the PDF so its all on one PDF.