Popla Stage Parking Ticket

amitmadahar

Dear Forum,

I got PCN for parking on a private land for literally less than 10mins to do a late morning school run. I followed the initial steps of appealing and as expected it was rejected with a Popla code. I went through the forum and have prepared my reply. Please let me know if this okay:

Appeal letter rejected:
dropbox.com/s/4yydyvrwhcp46ds/appeal%20letter%20910842864_Redacted.pdf?dl=0

Is this NTK?
dropbox.com/s/q1l2kvpjho0h2zc/Delayed%20Notice_Redacted.pdf?dl=0

POPLA Verification Code: XXXXXXX
Vehicle Registration: XXXXXXX
PCN Reference No.

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued by Private Parking Solutions (London) Ltd.

The parking charge notice was issued on 12-01-2018 to which I, as the registered keeper of this vehicle, appealed to the operator – Private Parking Solutions (London) Ltd. – on 07-02-2018 and acknowledged by the Operator on 22/12/2017 followed by 07-03-2017 and rejected via the same email dated 07/01/2018. 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:

1. Grace Period: BPA Code of Practice – non-compliance 1
2. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time (night, raining). 4
3. The entrance signs are inadequately positioned and lit and 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 penalty charge itself 5
4. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge 16
5. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice 17
6. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements 19
7. This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park. 20
8. Private Parking Solutions (London) Ltd has no contractual authority 22
9. Keeper Liability Requirements and the Protection of Freedom Act 22
10. No Contract was entered into between the Private Parking Solutions Ltd. and the Driver or Registered keeper 23


1. Grace Period: BPA Code of Practice – non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:
“Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA’s Code of Practice (13.2) states that:
“You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”


The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

Finally, some 3 years ago years ago, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads:

“Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.”

(Source /20150730_PDandS_Board_Action_Notes.pdf)

This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken

into account – certainly an allegation of under eleven minutes (as is the case here) is perfectly reasonable.

As stated earlier in this section, whilst 13.4 does not apply in this case (as a contract was never entered in to), it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and
13.2 respectively of the BPA’s Code of Practice.

If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions (in this case in the dark with no lighting), decide not to enter into a contract and then leave the car park.

It is therefore argued that the duration of visit in question (which Private Parking Colutions (London) Ltd do nto even mention was less than 10) is not an unreasonable grace period, given:

a) The site is not well lit and relies on nearby street lighting as its primary source of lighting.
b) Visibility was hindered further as the site due to heavy rains at time of the visit –
10:30:48AM to 10:40:24AM.

c) The lack of sufficient signage throughout the car park in question (non- compliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
d) The failure to light signage adequately so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.
e) The lengthiness of Private Parking Solutions (London) Ltd.’ signage (in terms of word count) with a significant amount of text included in an “Important Notice” section (the title “Important Notice” clearly implying it is essential this must be carefully read and understood) in tiny red text at the bottom of the sign (see Figure 2).
All factors discussed above serve merely to increase the time taken to:

• Locate a sign containing the terms and conditions.

• Read the full terms and conditions in the darkness.

• Decipher the confusing information being presented (one example being identifying which fees apply, as discussed further in section 2, of this document).
• Decide not to park and therefore enter into a contract.

• Return to car and safely leave the car park.


2. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time (night, raining).

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Private Parking Solutions (London) Ltd. is now demanding, rather than simply the nominal amount presumably due in a machine on site.
The alleged breach occurred on a rainy night and the signs were not visible (readable) or illuminated to be seen by any driver entering the car park at that time of the day; the car park itself was not illuminated as the public lighting was off. These are not mitigating circumstances but failure by Private Parking Solutions(London) Ltd.plus to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are visible at the time of darkness.
The BPA Code of Practice, Appendix B, under Contrast and illumination:
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 a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective. Clearly none of these conditions were met (see attached photographs of non-bpa-compliant, non-obvious signage).
Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. Private Parking Solutions(London) Ltd. did not provide me with evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.

3. The entrance signs are inadequately positioned and lit and 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 penalty charge itself
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 £100, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the penalty 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:



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.

Figure 1 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:

Figure 1: Beavis sign

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 and sparsely 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.

Private Parking Solutions (London) Ltd.’ main car park sign on site (the only one in the car park displaying terms and conditions) is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure 2).


Figure 2: Car park sign close-up

The image in Figure 2 shows a close up of the main car park sign in the good lighting conditions. (N.B. This image was taken whilst standing at ground level looking up from in front. The camera was held above head height so as to capture as close an image as possible, therefore it cannot be assumed that this is the view a person would have when standing below the sign. It should be emphasised that, when viewed from ground level, the text is even more difficult to read than it is in Figure 2).

Figure 2 shows clear evidence that:
• The sign is positioned high on a pole, making it difficult to read.
• The terms are made even harder to read even it well lit conditions.
• The sign is not lit at all making it difficult to read in poor light conditions or dark rainy days.


Figure 2 clearly show that Private Parking Solutions (London) Ltd.’ signage does not comply with the BPA Code of Practice (18.3), specifically:

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The section in text at the bottom of the sign (see Figure 2) that is apparently an “Important Notice and Terms and Conditions” is in tiny text that is impossible to read without a step ladder, particularly in poor light conditions when you would also need a torch. Why is something so important as T&Cs so small and illegible?

Indeed, in relation to design principles, it is widely known that colour contrast plays a key role in terms of accessibility as it “affects some people’s ability to perceive information (in other words to be able to receive the information visually).” (Government Digital Service, 17 June 2016). Whilst this web page discusses design principles in relation to web design, the same points are true of print-based materials which would include signage.

Areas of this site are unsigned and there are no full terms displayed clearly indicating non-compliance with the BPA Code of Practice (18.3) which states:

“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

Recently (September 2017) a not dissimilar POPLA appeal versus Private Parking Solutions (London) Ltd. (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.

It cannot be reasonably assumed (particularly given this case took place in poor light conditions without its own lighting or without any signage being adequately lit) that a driver drove past and could read a legible sign, observed one upon entrance to the car park.

Figure 3 Car park entrance from directly opposite the entrance

Figure 3 shows the approach to car park for which the PCN has been issued. It can be seen that the car park is not marked at all, no lights or parking bays clearly marked. This image clearly shows no signage on approach to the car park.

The BPA Code of Practice (Appendix sets the requirements for entrance signs. Following further research (on foot, during daylight), it is not disputed that Private Parking Solutions (London) Ltd. entrance sign meets these requirements in terms of wording/layout – in fact it is almost a direct copy of the example the BPA provide. What is disputed are other requirements the BPA sets in Appendix B, specifically:

1. The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
2. 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 a retro-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 (it’s not even visible), nor is it readable and understandable at all times. It is not directly lit nor does it benefit from lighting used for the parking area. It may well be made of a retro-reflective material but this is irrelevant in this case as the positioning of the entrance sign is as such that vehicle headlights will never shine on it sufficiently so as to illuminate it.

The entrance sign to the left of the entrance contains a substantial amount of text. This text is very small – impossible to read whilst in a moving vehicle – and difficult to read in daylight whilst on foot (let alone from a moving vehicle in poor light conditions).

The entrance sign to the left of the entrance (from the perspective of a vehicle entering the car park) is the sign that states the car park terms and conditions. As previously discussed, the issue with this entrance sign is not compliance in terms of wording/format, more positioning and illumination. Specifically, I will discuss three factors that are key in establishing non-compliance with the BPA CoP (Appendix ; the height of the sign; the distance of the sign from the approach road; the direction the sign faces in relation to approaching traffic.

The measurement from the ground to the bottom of the relevant entrance sign is 230cm. The measurement from the ground to the top of this sign is 320cm. The blue ‘P’ (indicating parking) and the text “Parking Terms and Conditions Apply” is included in the upper third of this sign, 290cm-320cm from the ground.
The sign is approximately one car length distance from the point at which a vehicle would begin turning into the car park from the 20mph approach road.

The sign is angled so as to look directly out from the car park, pointing at 90 degrees from any approaching traffic, as shown in Figure 4 below.


Figure 4: Angle of entrance sign in relation to approaching traffic

Given this car park is accessed from a one-way street, would it not be sensible to angle all entrance signage towards oncoming traffic? Indeed this seems to be the method employed in various other car parks observed whilst researching for this case – Figure 5 shows the Kirkleatham Street car park signage, located a 2 minute walk from the car park in this appeal. In the absence of direct/indirect light for the entrance signage, angling the signs in the direction of oncoming traffic would increase the likelihood of headlights illuminating them upon approach.


Figure 5: Kirkleatham Street signage

It is important at this point to reiterate that vehicles approaching/entering the car park do so from a 20mph one-way street. When discussing entrance signs, the BPA CoP (Appendix suggests a typical approach speed of 15mph to enter a car park by immediately turning off a 30mph road.

Figure 4 clearly illustrates that vehicle headlights would never be shining in the direction of the relevant entrance sign in order to illuminate it and therefore enable the driver to A) see it and stand a chance of reading it in poor conditions.

Taking figures 4 and 5 into account and based on the angle of the entrance sign in relation to the approach road, it is clear that the entrance sign to the car park is wholly inadequate. In order for driver to take a note of the signage entrance sign the vehicle would have to make an unnatural turn of over 90 degrees, within less than 5 metres, at a speed of around 15mph (using BPA CoP suggested approach speeds). This is impossible. Even if this manoeuvre was somehow performed, by the time the vehicle has turned to face directly towards the sign, it would be way too close to notice the sign positioned 230cm from the ground.

amitmadahar

continued.....

Performing some simple calculations seeks only to reinforce the point that the entrance signs are non-compliant and invisible to a driver approaching in the dark. Take the length of the vehicle identified on the NtK, a Skoda Octavia Estate (4685mm) and the BPA!!!8217;s suggested approach speed of 15mph. With an entrance sign positioned approximately one car length from the approach road as is the case here, travelling at 15mph the vehicle would be past the entrance sign in less than ¾!!!8217;s of a second.

Moving on from the non-compliant entrance signs, I wish to share one further image that clearly illustrates the inadequate signage at the car park.
Figure 2 was taken in the better lighting conditions than the occasion for which the PCN has been issued. This provides clear evidence as to the lack of legible or signage from where the vehicle was situated.

It is therefore suggested once again that Figures above serve to reinforce the earlier point made (in relation to Figures 2 and 3) regarding non-compliance with the BPA Code of Practice (18.3), specifically:

!!!8220;Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.!!!8221;

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, the signs in the West Dyke Road car park do not clearly mention the parking charge which is hidden in small print (and does not feature at all on all but one of the signs within the car park site). Large 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 02/06/16, 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 Private Parking Solutions (London) Ltd. 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:

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

''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:


''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:


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, the BPA Code of Practice (18.1) clearly states that:

!!!8220;A driver who uses your private car park with your permission does so under a licence or contract with you!!!8230;.In all cases, the driver!!!8217;s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.!!!8221;

Bearing this paragraph in mind, there was categorically no contract established between the driver and Private Parking Solutions (London) Ltd.. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated.
Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high, on the passenger side of the vehicle, not visible from drivers side), invisible after dark (not lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle entering the car park from a 30MPH road), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.


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

!!!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 cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 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.''



5. 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:
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.


6. No Evidence of Period Parked !!!8211; NtK does not meet PoFA 2012 requirements
The Notice is marked as a Reminder Notice rather than NtK. No communication has been received from Private Parking Solutions (London) Ltd. before this notice, so I am not sure why this is being referred as !!!8220;Reminder!!!8221;.
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates. 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 must be met as stated in paragraphs 5, 6, 11 & 12. Private Parking Solutions (London) Ltd. have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

!!!8217;The notice must be given by !!!8212;
(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.!!!8217;!!!8217;


The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states:

!!!8220;!!!8217;The relevant period is the period of 14 days beginning with the day after that on which the specified period of parking ended!!!8217;!!!8217;

The NTK sent to myself as Registered Keeper arrived some 8 weeks after the alleged event. Even if they had posted it on the same day that they describe as the !!!8216;Date!!!8217; it would be impossible for the notice to have been actually delivered and deemed !!!8216;served!!!8217; !!!8216;or given, within the 'relevant period' as required under paragraph 9(4)(b). This means that CEL have failed to act in time for keeper liability to apply.

Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the !!!8220;period of parking!!!8221;. Most notably, paragraph 9(2)(a) requires the NtK to:

!!!8220;specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;!!!8221;

Private Parking Solutions (London) Ltd.!!!8217; Reminder Notice simply claims !!!8220;the vehicle was parked at St. Stephens Close/ Avenue Close/ Broxwood Way.!!!8221; No exact location is mentioned. The car cannot be parked at 3 locations simultaneously.

The Reminder Notice separately states that the PCN was issued at St. Stephens Close/ Avenue Close/ Broxwood Way at 12-01-2018 10:32. At no stage do Private Parking Solutions (London) Ltd. explicitly specify the !!!8220;period of parking to which the notice relates!!!8221;, as required by PoFA 2012.

It is not in the gift of Private Parking Solutions (London) Ltd. to substitute !!!8220;entry/exit!!!8221; or !!!8220;length of stay!!!8221; in place of the POFA requirement - !!!8220;period of parking!!!8221; - and hold the keeper liable as a result.

I require Private Parking Solutions (London) Ltd. to provide evidence to show the vehicle in question was parked on the date/time and at the !!!8220;which!!!8221; location stated in the Reminder Notice.


7. This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

This question was tested recently in an Appeal case in June 2016 (transcript attached as evidence for POPLA*). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block!!!8217;s entrance and that Home Guard Services!!!8217; regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say !!!8220;on condition that you display a permit!!!8221;. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

8. Private Parking Solutions (London) Ltd has no contractual authority

In the notices they have sent me, Private Parking Solutions (London) Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require Private Parking Solutions (London) Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that Private Parking Solutions (London) Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

amitmadahar

continued...

9. Keeper Liability Requirements and the Protection of Freedom Act

As the keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was, I submit that I am not liable to any charge. In regards to the notices I have received Private Parking Solutions (London) Ltd. has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself. I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided is not actually valid or sufficient on its own as a form of evidence.

10. No Contract was entered into between the Private Parking Solutions Ltd. and the Driver or Registered keeper

Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Private Parking Solutions (London) Ltd clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of Private Parking Solutions (London) Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Private Parking Solutions (London) Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that Private Parking Solutions (London) Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.


Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Coupon-mad

I got PCN for parking on a private land for literally less than 10mins to do a late morning school run.

You do know you can legitimately park on single/double yellows - as long as there is not a loading ban, no added yellow kerb blips - to assist a child to board or alight?

You don't need a car park (next time, stay on street, avoiding taxi bays, bus stops, bus lanes and red routes and certainly avoiding yellow zig zags or crossings). Deliberately look for and CHOOSE yellow lines when dropping off/picking up or loading/unloading. I do, as long as one is being quick.

Yes this is a NTK but it is not POFA compliant:

https://www.dropbox.com/s/q1l2kvpjho0h2zc/Delayed%20Notice_Redacted.pdf?dl=0

''If within 29 days we have not received...driver details...''

LOL!

That goes as your first point, in fact. Use and edit your #9 and move it up to #1:

[STRIKE]9[/STRIKE] 1. Keeper Liability Requirements and the Protection of Freedom Act

As the keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was, I submit that I am not liable to any charge. In regards to the [STRIKE]notices[/STRIKE] 'Reminder Notice' that I have received Private Parking Solutions (London) Ltd. has made it clear that it is [STRIKE]operating[/STRIKE] seeking to apply liability under Schedule 4 of the Protection of Freedoms Act but has not fully met all the keeper liability requirements. [STRIKE] and therefore keeper liability does not apply[/STRIKE].

The parking company can therefore [STRIKE]in relation to this poin[/STRIKE]t only pursue the driver.

I would like to point out that Schedule 4 paragraph 8[STRIKE]paragraphs 8 and 9[/STRIKE] of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid. [STRIKE]and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that: .... the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself. I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided is not actually valid or sufficient on its own as a form of evidence.[/STRIKE]

As the appellant has not declared the driver of the vehicle, the POPLA Assessor must consider whether the conditions of the Protection of Freedoms Act (PoFA) 2012 were met. The Notice to Keeper will need to comply with section 8 of PoFA, 2012 that states that the creditor must:

''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given; (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''

The PCN (Reminder, masquerading as a NTK) provided by the operator merely states: ''If within 29 days we have not received full payment or driver details...''

Within 29 days of what? And ''driver details'' is paraphrasing, unclear and non-compliant.

As such, POPLA cannot conclude that the Notice to Keeper does meet the requirements of PoFA 2012. Therefore, POPLA must allow the appeal because that NTK - specifically the statutory, mandatory 'keeper liability' warning prescribed in the Act in 8(2)f - was not properly given.

Your #6 goes in the bin, now! Makes no sense, talks about para 9 of the POFA which does not apply to a windscreen PCN. And you can't prove the letter was received in March, not February, unless the envelope shows the date posted? If not, then that point is moot.

Your #7 also goes in the bin, now! You have copied a point in #7 that ONLY relates to residential car parks where the person is a resident and has primacy of contract to park there.

Umkomaas

Grace Periods don't provide general cover to fly-park in any private car park for premeditated dropping off purposes.

The_Deep

I am not sure that I approve of mums trespassing near schools, but their signs seem designed to trap people, so complain anyway to your MP.

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 they will be out of business by Christmas.

Coupon-mad

The_Deep wrote: »

I am not sure that I approve of mums trespassing near schools

Ouch DP, sexism creeping in?! We don't know that a school run is done by a Mum...

Umkomaas

Coupon-mad wrote: »

Ouch DP, sexism creeping in?! We don't know that a school run is done by a Mum...

Not even by a SchoolRunMum!