NTD from LPS (Local Parking Security Ltd)

Coupon-mad

Keep it short!

Weasel_Watcher

Just to keep you up to date, the keeper sent the following email;
Parking Charge Notice: PCN xxx

Please confirm whether or not your email which was received on 9th April 2018 constitutes a rejection of my appeal. If so, please provide me, the keeper, with a POPLA appeal code number as your code of practice instructs.

Sincerely,

<keeper name>
<keeper address>

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Received the following reply on Friday 11-May-2018

[FONT=&quot]Dear <keeper name>,[/FONT]

[FONT=&quot]Parking charge notice: xxxx[/FONT]

[FONT=&quot]Thank you for your email dated: 9th May 2018[/FONT]

[FONT=&quot]We advise that <car park name> operates as a pay and display system for all car park users, this is clearly stated on all signs located throughout the car park.[/FONT]

[FONT=&quot]As no ticket was purchased or displayed the above parking charge notice was correctly issued.[/FONT]

[FONT=&quot]Thank you for your appeal against the parking charge notice issued by us to you on the 12th March 2018. Having carefully considered the evidence provided by you we regret your appeal has been unsuccessful for the following reasons:[/FONT]

[FONT=&quot]!!!8226; Parking without displaying a valid ticket[/FONT]

[FONT=&quot]You now have a number of options:[/FONT]

[FONT=&quot]1. Pay the parking charge Notice at the reduced amount of £50.00 within 14 days. Please note that after this time the parking charge notice will increase to £85.00.[/FONT]

[FONT=&quot]2. Make an appeal to POPLA !!!8211; The independent Appeals Service by visiting www.popla.co.uk and submitting your appeal online. Please note that if you wish to appeal to POPLA, you will lose the right to pay the charge at the discounted rate of £50.00, and should POPLA!!!8217;s decision not go in your favour you will be required to pay the full amount of £85.00. If you opt to pay the parking charge you will be unable to appeal to POPLA.[/FONT]

[FONT=&quot]3. If you choose to do nothing we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.[/FONT]

[FONT=&quot]You have now reached the end of our internal appeals procedure. [/FONT]

[FONT=&quot]If you wish to appeal to POPLA, please submit your appeal online by visiting www.popla.co.uk .[/FONT]
[FONT=&quot]When submitting your appeal to POPLA, please use verification code xxx[/FONT]
[FONT=&quot]Please note that you have 28 days from the date of this email to submit your appeal to POPLA.[/FONT]

[FONT=&quot]By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above[/FONT]
[FONT=&quot].[/FONT]

[FONT=&quot]Yours Sincerely[/FONT]

[FONT=&quot]Appeals Department[/FONT]
[FONT=&quot]Local Parking Security Ltd.[/FONT]
[FONT=&quot]PO Box 6321[/FONT]
[FONT=&quot]Warwick[/FONT]
[FONT=&quot]Warwickshire[/FONT]
[FONT=&quot]CV34 9QB[/FONT]

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So, keeper has finally received the POPLA code. Over the next few days the wording of the POPLA appeal will be worked on and posted here.

I'm quietly confident as there was no NTK ever served, and from googling this PPC, their NTKs aren't PoFA 2012 compliant anyway. I'm hoping this consitutes a golden ticket in itself, but just in case (and also to inconvenience the PPC as much as possible), will make sure the appeal is a comprehensive one.

Coupon-mad

I'm quietly confident as there was no NTK ever served,

You are right to be confident, then! You can't lose.

(and also to inconvenience the PPC as much as possible), will make the appeal is a comprehensive one.

I agree, and part of the reason for the kitchen sink POPLA appeals is to make it hard for the scumbag parking firms.

Weasel_Watcher

OK. I think I'm ready with my POPLA appeal, it's a bit kitchen sink. Please give me some feedback....


Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from LPS Ltd on the following points:


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

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. The vehicle was not !!!8220;parked!!!8221;, it was broken down.


1. 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)!!!8212; (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 !!!8216;If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.!!!8217;

The NTK must have been delivered to the registered keeper!!!8217;s address within the !!!8216;relevant period!!!8217; 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.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

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

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. 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 because the fact remains I am only 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, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
!!!8220;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 !!!8216;reasonable presumption!!!8217; 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 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 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

[FONT=&quot]The signs are sporadically placed, indeed the sign on entry to the car park is partially obscured by a tree as you enter the car park by road.[/FONT]
https://i.imgur.com/bFZDBqY.jpg
https://i.imgur.com/0tGNC83.jpg
https://i.imgur.com/S6AZmiA.jpg
https://imgur.com/eccLf8v.jpg

The driver was a young/inexperienced person in the early hours of the morning, and they used the public house car park in what they believed was emergency circumstances, due to a flat tyre. There was nowhere else convenient to stop close by, and the driver was unaware that any parking restrictions existed. The driver was in a distressed state, and after stopping, left the vehicle and car park on foot, in order to seek assistance.
The above pictures were taking at night time, during lighting up hours, not during complete darkness in the early hours of the morning at the time of the alleged offence, when they would have been invisible to the driver. At the time of the alleged offence, the public house would have been closed and the car park would have been in complete darkness. The driver would have had no chance to view the signage and therefore no contract can exist.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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.




[FONT=&quot]Furthermore, the signs 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).

[/FONT]
[FONT=&quot]https://i.imgur.com/0iylTJp.jpg[/FONT]
[FONT=&quot]https://i.imgur.com/Z0WLBMs.jpg[/FONT]
[FONT=&quot]https://i.imgur.com/EmumxPa.jpg[/FONT]
[FONT=&quot]
[/FONT]

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!!!8221; 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!!!8221; 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 judgement 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.

5. The vehicle was not parked, it was broken down.
Even a cursory glance at the vehicle would have confirmed that the front offside tyre was completely flat, as shown in the attached picture taken from the car on the day of the vehicle!!!8217;s recovery.



https://i.imgur.com/sCq2l2o.jpg


The driver had not parked, but was unable to drive the vehicle, and being unaware of the parking restrictions in the early hours of the morning had left the vehicle prior to recovery.

---

Should I put anything about the non-compliant NTD? They never sent a NTK, so all I have in an NTD.

[FONT=&quot]
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[FONT=&quot]
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KeithP

Can you not get pictures at the same time of night as the incident?
In post #4 you said you were going to. That would really make a difference IMHO.

The above pictures were taking at night time, during lighting up hours, not during complete darkness in the early hours of the morning at the time of the alleged offence, when they would have been invisible to the driver. At the time of the alleged offence, the public house would have been closed and the car park would have been in complete darkness. The driver would have had no chance to view the signage and therefore no contract can exist.

I would suggest that those few sentences at least need to be more assertive. Get rid of the 'would have been's.

It would be good if you could change the above to something like:

The above pictures were taking at the time of the alleged offence, when they were invisible to the driver. At that time the public house was closed and the car park was in complete darkness. The driver had no chance to view the signage and therefore no contract can exist.

In your actual appeal document you should embed the pictures in the doc rather that have links. Help the assessor to read your story.
Here's an example of what I mean, linked from post #3 of the NEWBIES thread:
https://www.dropbox.com/s/p7ltb9rcr6zy7kn/Appeal_stage2_POPLA_ECP_draft5.pdf?dl=0
Note that each picture in numbered and described in the text.

Coupon-mad

Remove the non working ebay and signazon links from the signage point; they are dead and of course remove the sentences that refer to those links.

Weasel_Watcher

KeithP wrote: »

Can you not get pictures at the same time of night as the incident?
In post #4 you said you were going to. That would really make a difference IMHO.

I know I did, and that was the plan, but the problem is that I don't actually live anywhere near there. The driver parked in the very early hours (about 3:00am- 3:30am) Sunday morning. It's proving awkward to get there at this time of the morning, and since I apparently have a golden ticket anyway, it would be tragic to miss the looming deadline.

KeithP wrote: »

I would suggest that those few sentences at least need to be more assertive. Get rid of the 'would have been's.

It would be good if you could change the above to something like:

The above pictures were taking at the time of the alleged offence, when they were invisible to the driver. At that time the public house was closed and the car park was in complete darkness. The driver had no chance to view the signage and therefore no contract can exist.

In your actual appeal document you should embed the pictures in the doc rather that have links. Help the assessor to read your story.
Here's an example of what I mean, linked from post #3 of the NEWBIES thread:
https://www.dropbox.com/s/p7ltb9rcr6zy7kn/Appeal_stage2_POPLA_ECP_draft5.pdf?dl=0
Note that each picture in numbered and described in the text.

In the actual document, I've embedded the pictures. I've only added them as links so I could paste them here. Thank you for the pointers though, and I'll reword those paragraphs.

Coupon-mad wrote: »

Remove the non working ebay and signazon links from the signage point; they are dead and of course remove the sentences that refer to those links.

Will do. Thank you all.

The only other thing that's niggling me is should I say anything about the wording of the NTD? Specifically the fact that it says "Excess Charge Notice" and that it is not PoFA compliant either? Just in case they try and make out they've sent out a NTK, I think it would be prudent to point out that the NTD doesn't comply with paragraph 7



http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted


In that it doesn't mention " period of parking to which the notice relates" only that it was issued at 09:46 on 12/03/2018.

Weasel_Watcher

Here is the NTD

Castle

Report them to trading standards as the Credit/Debit card payment charge of £1.50 was banned in January 2018.

Weasel_Watcher

Castle wrote: »

Report them to trading standards as the Credit/Debit card payment charge of £1.50 was banned in January 2018.

Nice find. Very happy to do that. Let's get this thing crushed at POPLA first though. Pretty sure POPLA won't be inerested in that.