First Email to BPA Registered Company

Flyawaypaul

Hi

Thank you for your help. I have copied the template appeal to BPA registered company from the Newbie Stickie into an email and it's ready to go. I understand from the stickie that I should include my postal address at the bottom of the email. Is that correct and why?

Sorry for posting in the Newbie sticky. No, I didn't see the post asking people not to do that because they appear later on in the appeals process.

Many thanks

Redx

do they allow email appeals ?

the KEEPER should appeal it as KEEPER and give their name and address for service of the paperwork and to prove they have the right to appeal it, otherwise anyone could do so , including M Mouse , Disneyworld , Florida , USA

Coupon-mad

You give your address so that they will have no excuse not to reply, and not pretend they 'can't' deal with an appeal with no postal address.

And if this is a windscreen PCN, the entire point of appealing on day 26 is to make them reply to the appeal, and NOT go to the DVLA for the keeper data at all. If you don't give a PPC an address, you've thrown that away and they will go to the DVLA for an address. You want them not to do that, if it's a windscreen PCN.

Flyawaypaul

That's great, thank you both for the explanation. I will definitely appeal as keeper, not driver. Yes, it is a windscreen ticket and yes, they do allow email replies. The instructions on the ticket are email if you wish to appeal and I have checked the appeals page on their website and it is an email address and not an online form.

Thanks again.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

Flyawaypaul

I'm working on my POPLA now but the parking company didn't send my a photo of the signage and I live far away. Can I still appeal?

Half_way

If you've got a POPLA code, yo can challenge the parking charge via POPLA, post your challenge here ( removing any personal details/codes etc)
You should also contact/complain to the ladowner as well, if you havent already done so

Flyawaypaul

Will copy, edit and post, thanks. Yes, I have a POPLA code but no photos.

KeithP

Have you looked online for photographs?

What car park is it?

Perhaps there are already pics on this forum.
Use the forum's search facility to check.

Flyawaypaul

Yes, I have looked online for photographs. It's the car park for the Courtyard arts centre in Hereford. I couldn't find a POPLA appeal on the forum for that particular car park.

Flyawaypaul

Below is my draft POPLA appeal. The template mentioned an appendix of the BPA Code of Practice. Should I find and attach this with my appeal? Where can I get it?

Thanks in advance.

POPLA Verification Code: XXXXXXX
Vehicle Registration: XXXXXXX

I, the registered keeper of this vehicle, received a parking notice on 26/02/2018 acting as a notice to the registered keeper. My appeal to the Operator – Corporate Services (Hereford) – was submitted electronically via the operator’s website on 025/03/2018. A rejection letter dated 01/03/2018 was received by email on 28/03/18.

I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

The entrance signs are not prominent, clear or legible from all parking spaces, especially in relation to the sum of the parking charge itself.
The NtK does not meet PoFA2012 requirements - no POFA-compliant keeper liability warning
Given the NTK is non-compliant with POFA 2012 Schedule 4, the operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
No Evidence of Landowner Authority -the operator is put to strict proof of full compliance with the BPA Code of Practice

1. The entrance signs are not prominent, clear or legible from all parking spaces, especially in relation to 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. 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.

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 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.

The BPA Code of Practice (Appendix sets the requirements for entrance signs. The following requirements, set out in Appendix B, are disputed:

The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. Signs should be readable and understandable at all times,including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of are tro-reflective material similar to that used on public roads and described in the Traffic Signs Manual.

In disputing points 1 and 2 above, the relevant entrance sign in this appeal case is not readable by drivers without their need to look away from the road ahead, nor is it readable and understandable at all times.

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 vs London Borough of Waltham Forest [2000] EWCACiv106’ about a driver not seeing the terms and, consequently, he was NOT deemed bound by them. This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case: *link to case details goes here*
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), in the same lighting conditions. 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.

In addition to this, 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, £75 is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

2. NtK does not meet PoFA2012 requirements no POFA-compliant keeper – liability warning

The NtK fails to comply with PoFA 2012 requirements for adequate warning of keeper liability. Paragraph 8 of schedule 4 PoFA 2012 details the requirements that must be met with regards to ‘a notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a)’. Most notably, paragraph 8(2)(f) requires the NtK to:

“warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
the creditor does not know both the name of the driver and a current address for service for the driver”

This is in clear conflict with the Corporate Services (Hereford) NtK, which chooses to set its own conditions as follows:

“If payment is not received within 28 days Corporate Services may commence immediate legal proceedings for the recovery of the £75 charge together with all associated costs.”

In my view, this wording does not establish the correct conditions for keeper liability as presented above, and hence renders the NtK non-compliant.

3. Given the NtK is non-compliant with POFA 2012 Schedule 4, 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. In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper 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.

4. 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 Code of Practice) 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 Code of Practice 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:
the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
who has the responsibility for putting up and maintaining signs
the definition of the services provided by each party to the agreement.