Newbie advice required please

hubblebubble

Hi

I received a NTRK letter from MET parking dated 22nd jan 2018 relating to a contravention occurring on 17th December 2017 at Southgate park, Stansted (aka Starbucks/McDonalds)

The reason for the charge was given as : Left the premises (SPC)

I appealed online on 25th jan - the day I received the letter and got my POPLA verification code today.

I have searched for similar appeals and most seem to focus on

1) MET Parking has deliberately chosen not to use the POFA 2012 and has not
shown that the individual who it is pursuing is in fact the driver who was liable for the
charge (ref: POPLA case Carly Law 6061796103).
2) Non-compliance with various requirements set out in Schedule 4 of POFA 2012.
3) No evidence of Landowner Authority - the operator is put to strict proof of full
compliance with the BPA Code of Practice.
4) 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.
5) Amount demanded is a penalty

Is there anything else I need to add, other than cutting and pasting all the details relating to these points?

Is the timing of the NTK letters relevant? (I had no charge placed on windscreen, and the charge was received 45 days after the event occurred)

Thanks for any advice given.

Fruitcake

You have covered most of the points, but check the template points from the NEWBIES to make sure you have everything that is relevant.
POFA timings look OK at 45 days where no NTD was given, but there may be other POFA failings, so you will need to compare the NTK against the very strict requirements of the POFA to see if they have missed anything.

As this is an airport, were byelaws mentioned?

Not the landowner and no standing to bring charges in their own name should be included in your PoPLA appeal as well as not the same as Beavis, and the long inadequate signage point, so you've already got he basics in there. Just check the fine details and show us your draft here before submitting.

Umkomaas

You need to ask a Board Guide to merge this with your other thread. The forum requires non-fragmented threads as no one will be jumping back and to between them to pick up/understand context. Advice may become confused - not a great position for you to be in.

hubblebubble

OK. So I have had a stab at a draft of my appeal. Would you please have a look and advise of what needs amending/including/omitting?

I focused on: 1) NTK failing to comply with POFA - received the NTK 45 days after the event
2) Keeper Liability
3) No evidence of Landowner liability
4) Signage

1)The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA)

To support this claim further the following areas of dispute are raised:
• The NTK was not served within the required 14 days to transfer keeper liability
• The NTK fails to identify the facts that caused a parking charge to arise

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 are met as outlined in paragraphs 5, 6, 11 & 12. MET PARKING has failed to fulfil the conditions which state that the keeper must be served with a compliant NTK, as outlined within paragraph 9. Specifically, they have failed to include the mandatory timeline and wording:
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.

This appeal would like to specifically highlight subsection (b) as the received NTK was delivered by post. Furthermore, paragraph 9 (5) defines a relevant period as “..the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent appellant arrived 45 days after the alleged event. Therefore, this serves to highlight that MET PARKING have failed to act in time for keeper liability to apply. As a result, the appellant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the Protection of Freedom Act (POFA) 2012.

To offer further context to this point, MET PARKING has also omitted the following wording from paragraph 7 (2), of schedule 4, of POFA 2012:!
’The notice must –
(a) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…

Upon receiving the Notice to Keeper it lacked any description detailing the parking charges owed from the alleged ‘leaving the premises’. The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.


2)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)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


4)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%2Bsign_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.





Thanks:money:

KeithP

You seem to have overlooked the suggestion made in post #3 above.

hubblebubble

KeithP wrote: »

You seem to have overlooked the suggestion made in post #3 above.

Thanks - I have requested this to the forum guides.

I am also wondering whether I should include in my appeal the following regarding the issue of "Leaving the site" :

5)“No evidence that all the occupants of the car and/or driver left the site.”

The so-called parking charge was given because the “vehicle owner / driver” were alleged to have “left the site”. However, the operator has provided no evidence to support this, nor that this is a contravention authorised by the landowner in any contract MET PARKING hold.

I therefore put MET PARKING to strict proof of any/all occupants of the car “leaving the site” and evidence that a 'relevant obligation' was created not to leave the site. This would require a clear sign near the car, in legible and prominent font in very large letters suitable for outdoor signage, informing the driver of ALL of the following:

(a) the boundary edges of the site (e.g. a map on the sign would be needed to pass the test of transparency of terms as set out in the CRA 2015)

(b) a transparently stated obligation not to leave that 'site' as defined in signage

(c) clear information as to whether this applies to passengers as well as a driver

(d) clear and prominent information about any £100 charge in the same sort of prominent and 'very large lettering' as impressed the Judges in the Beavis case.

All of the above were absent (unreadable or hidden in small print, if there at all).

On the balance of probabilities, it is astonishingly unlikely in this age of people only just making ends meet, that a reasonably circumspect and careful driver would 'accept' £100 charge in this situation even if a contravention did occur (which is denied). It is also astonishingly unlikely and improbable that all of the occupants of the car left the area after parking and the evidence of this is conspicuous by its absence. Even if MET PARKING have evidence of which occupant was driving or where that person went it is confidently submitted that the driver was not given 'adequate notice' of the alleged terms because no-one who drives this vehicle would ever knowingly agree to pay £100 to park for what seems to be a minute, which exceeds the annual cost of airport parking for two weeks.

Inadequate notice of the parking charge and any obligations/contract terms, indisputably fails Schedule 4. The keeper of this car cannot be liable and as that is me, the appellant, POPLA will be unable to find the NTK was properly given.



Grateful for any comments on draft thus far.

Coupon-mad

Certainly, if the PCN was about leaving the site. But posting a new thread hasn't helped us see the background.

hubblebubble

Apologies for starting a new thread. The original is here:

https://forums.moneysavingexpert.com/discussion/5783081

I just want to make sure I have covered all relevant angles before submitting the appeal to POPLA.....?

Thanks

Crabman

Duplicate threads have been merged

Coupon-mad

Cheers Crabman. What's happened to the edit function is the 30 second thing sorted yet?