LPS Reply, what do I do now?

Coupon-mad

Almost there, errors here, no such thing as a 'registered' hirer/lessee' and the hirer/lessee does NOT want to be saying to POPLA that a windscreen PCN ''was received by me''!

[STRIKE]LSP[/STRIKE] LPS Parking Ref no .......................

An 'excess charge notice' was issued on 31 January 2018.[STRIKE]and received by me,[/STRIKE] I am writing to you as the [STRIKE]registered[/STRIKE] hirer/lessee

And point #1 is wrong, they needed to send a Notice to HIRER, not a NTK, to you, if they wished to hold an appellant identified only as the 'hirer/lessee' liable. And the period for sending a compliant NTH (with the required accompanying documents is in para 13/14 of Schedule 4, and it is not 'day 56').

So replace your #1, with your new #6 which does get it right!

JB83

Thats great, so this should hopefully be the final draft.

POPLA Ref ...................
LPS Parking Ref no .......................

A !!!8216;excess charge notice!!!8217; was issued on 31 January 2018, I am writing to you as the hirer/lessee and would be grateful if you would please consider my appeal for the following reasons.

1)LPS failed to meet the strict requirements of Schedule 4 of POFA
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
3) No evidence of Landowner Authority.
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) LPS not authorised to serve !!!8216;Excess Charge Notice



1) LPS failed to meet the strict requirements of Schedule 4 of POFA

LPS failed to meet the strict requirements of Schedule 4 of POFA - A compliant Notice to Keeper or Hirer was never served on me - No keeper or hirer liability can apply

1a. Failure to deliver a compliant Notice to Hirer

In order to rely upon POFA to be able to hold me liable in my capacity as the vehicles hirer, LPS had to deliver a Notice to Hirer that fully met all of POFAs strict requirements.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA; the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge are set out in Paragraph 14.

Paragraph 14(2)(a) of Schedule 4 of POFA specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper).

Paragraph 14(5) specifies that the Notice to Hirer must:
(a) inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the notice to keeper) may be recovered from the hirer;
(b) refer the hirer to the information contained in the notice to keeper;
(c) warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid;
(d) inform the hirer of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(e) identify the creditor and specify how and to whom payment may be made; and
(f) specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

Despite being provided with my details as the vehicles hirer, LPS failed to deliver a Notice to Hirer (compliant or otherwise) to me within the relevant period specified within Schedule 4 of POFA.

Given its failure to comply with the requirements of Paragraphs 13 and 14 of Schedule 4 of POFA as detailed above, LPS claim against me (in my capacity as the vehicles hirer) must be determined as being invalid.

2) The operator 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)

There is no reasonable presumption in law that the registered hirer/lessee 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 hirer/lessee sent a Schedule 4 notice has no legal obligation to name the driver. If {POFA 2012 Schedule 4 is} not complied with then hirer/lessee liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as hirer/lessee of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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 un-redacted 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 !!!8216;Excess Charge Notices!!!8217;, 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.

The car park signage was inadequate.

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 'Excess charge Notice' 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.

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 here is the sign in The Three Blackbirds car park.


















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:

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

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

https://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.

5) LPS not authorised to serve !!!8216;Excess Charge Notice!!!8217;

An 'Excess Charge' has a particular meaning in law, and this operator is misleading drivers as to its level of authority. An official parking fine is known as a 'Penalty' Charge Notice, or 'Excess' Charge Notice or 'Fixed Penalty' Notice, and those only come from a Council or the Police. In fact, real 'Excess Charges' only arise on land under statutory control (e.g. byelaws/Council land). A private parking firm in the BPA are only allowed to describe theirs as a 'Parking Charge' (or 'contractual') Notice, otherwise they breach the Code of Practice by impersonating a level and weight of authority that their contractual charges simply do not carry.

Coupon-mad

Yep that should do the job, IMHO. Nice work!

JB83

Thank you very much for all your help!

JB83

Ok so no that simple, POPLA give 5 options.

1) My vehicle was stolen.
2) I was not improperly parked.
3) The amount requested on the parking charge notice is not correct.
4) I was not the driver or the registered keeper at the time or the alleged improper parking.
5) Other grounds for appeal (Appeals based solely on the following grounds for appeal are less likely to be successful)

Im guessing 4 or 5, I don't want to get it wrong now after all of this.

KeithP

JB83 wrote: »

Ok so no that simple, POPLA give 5 options.

1) My vehicle was stolen.
2) I was not improperly parked.
3) The amount requested on the parking charge notice is not correct.
4) I was not the driver or the registered keeper at the time or the alleged improper parking.
5) Other grounds for appeal (Appeals based solely on the following grounds for appeal are less likely to be successful)

Im guessing 4 or 5, I don't want to get it wrong now after all of this.

It really is very simple.

Clearly you choose 5 - as stated in the NEWBIES FAQ sticky thread.

Coupon-mad

And please now, nothing telling us there are only 2000 characters...read other threads!

The NEWBIES thread post #3 is all about POPLA.

It says, about the stage of submitting your PDF POPLA appeal:

These then get saved as PDFs and uploaded to POPLA under OTHER (ONLY) - do not think you only have 2000 characters in some box on the POPLA wepage!

http://parking-prankster.blogspot.co.uk/2015/09/new-popla-process.html


****************************

AFTER SUBMITTING YOUR POPLA APPEAL:

If the PPC contests the POPLA appeal, they will put on the Portal (and maybe also send to you) their POPLA evidence pack. It is NOT from POPLA not the decision!

This is your chance to comment on the crappy evidence from the scumbags. YOU MUST COMMENT.

How can I comment on the evidence sent to POPLA, they've written a lot and shown lots of pictures of signs?!


{blah blah...everything you need to know about POPLA is already there...!}

JB83

WOOHOO, My POPLA appeal was successful!

Thanks guys.

Umkomaas

JB83 wrote: »

WOOHOO, My POPLA appeal was successful!

Thanks guys.

Can we see the decision details please (would you mind putting some paragraphs into the usual wall of text that POPLA send out)?

Also, would you mind posting it in the POPLA Decisions sticky, with a link/cross-ref to this thread?

Great result. :T

JB83

Assessor summary of your case

The appellant!!!8217;s case is that the operator failed to meet the strict requirements of Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. They say that the operator has not shown that the individual it is pursuing is the driver. The appellant says that there is no evidence of landowner authority. They say that the signage is not prominent, clear or legible from all parking spaces and there is insufficient notice of the charge itself. The appellant says that the operator is not authorised to issue excess charge notices.

Assessor supporting rational for decision

By issuing the appellant with a Parking Charge Notice (PCN) the operator has implied that the appellant has not complied with the terms and conditions of the car park in question. It is the responsibility of the operator to provide evidence to POPLA which demonstrates the terms and conditions of the site and how they were breached. On this occasion, no evidence has been provided and the operator has therefore failed to demonstrate the validity of the PCN. Accordingly, I must allow the appeal.