Advice please regarding parking charge notice issued by Care parking at Stretford tram station

Lounesbo

Good morning all,
I havent forgotten your request Redx but I am struggling locating the finalised original appeal submitted on the 9th July. I have been on the popla site where it was lodged and cannot locate it. I have emailed them twice asking how to access it and have yet to hear back (cannot find their phone number). In essence I amended #29 in line with your recommendations. So I will post once I have access again.

Umkomaas

cannot find their phone number

Cunningly hidden on the 'Contact Us' page of their website. How devious! :cool:

If you want to call us the phone number is 03301596126. Our phone lines are open Monday to Friday 9am to 5pm. We are closed at the weekend and on bank holidays.

Lounesbo

At last my Original appeal to POPLA

Dear POPLA Adjudicator,

RE: POPLA verification Code:
Vehicle Registration:
PPC: Care parking
Parking charge notice (PCN)
Alleged Contravention Date:
Date of notice:
I am appealing to POPLA regarding PCN (detailed above) from Careparking on the following grounds:

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.

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)”; (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: “If a notice to driver has been given, any
subsequent notice to keeper MUST be given in accordance with paragraph 8”.

The NTK must have been delivered to the registered keepers address within the ‘relevant period’ 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.
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:
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 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.
There was neither 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 was 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 small and indeed obscured and hidden in some areas. They are overly crowded with small lettering, 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 the full details of all charges, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice. There are signs which mention the parking charge and terms and conditions but in small, crowded lettering (see attached photographs below).
Attached are photographs of the first sign upon entering the road leading to the car park (and not the actual car park itself.)

Photo here X

The above sign is on the opposite side of the road to the driver (i.e. on a high pole on the far right side of the road) and the heading states that the car park is for metrolink passengers only and the subheading is a brief reference regarding restrictions for overnight parking. The two photographs enclosed were taken on different days in different lighting conditions but during daylight (when the alleged charge is posited as having occurred by Careparking) and a/ cannot be easily read and b/ do not make explicit the detailed car parking terms and conditions. In fact this sign is also in a poor state of repair (near the bottom).
The next sign upon entering the car park (at the end of the aforementioned road) is again on a high pole and to the right at a jaunty angle with a competing, and highly visible sign above it regarding cycling (attached).

Photo X

The end of the tarmac appears to denote entrance to the car park. It is also next to a Bus stop sign which is no longer in use. This Careparking sign is not easily readable or obvious to a driver upon entering the car park. This sign is presented as it would have been observed by a driver entering the car park under discussion.
There are also several areas of this small site where contrasting signs (for example those relating to the metrolink service; potential risks of parking (regarding belongings), cycle lanes (as mentioned previously) and overnight parking conditions which are more prominent. Examples of these are included above and below:

Photo X

The above photograph is directly behind what would have been the driver’s position in the charge notice presented by Care parking. The middle sign is not related at all to the terms and conditions of parking.

The photograph below (Photo enclosed) would represent an area to the front right of where driver would have parked and the Careparking sign can only just be seen in this example.

The final attached photograph (below) has been taken from the left position of where the driver would have parked. The Care parking sign is far away and small. It is also near brighter yellow signs indicating access to the tram (the yellow signs are much clearer when walking nearby as are the blue cycleway signs, a Bus stop sign and the sign relating to belongings not being the responsibility of the car park).

The signs relating to Careparking terms and conditions all over the site are small and dwarfed by brighter more dominant signs nearby. These other signs, are in large font, bright colours and are more easily readable in contrast to much smaller signs related to parking terms and conditions. This array of signs at the site arguably also compete for attention and are much clearer and more easily legible than those provided by Careparking related to parking ‘terms and conditions’.
From the evidence I have seen so far, the terms appear to be displayed inadequately, both in terms of numbers and letters. The signs showing the terms and the 'charge' and placed on high poles or fences and presented in crowded small print. This is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a 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 ladder (and perhaps a torch/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 are not 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 this 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 and attached) how their signs appear 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. I submit that full tems simply cannot be read from a car before parking. If Careparking choose to provide 'stock examples' of close-ups of the (alleged) signage terms it is argued that these will not be sufficient to disprove the examples enclosed.
I, therefore, respectfully submit that my appeal by upheld and the charge dismissed.
Yours Sincerely,

Lounesbo

And additional comments submitted after Anchor (Care parking put their case) as detailed in #71:


The amount requested on the PCN is not relevant/ correct as the appellant is the registered keeper (RK) and the PCN was issued to the driver. Care Parking (CP) has no evidence that they transferred liability from the driver to the RK and that PoFA was followed correctly. No notice to keeper was ever served and this is necessary if RK is being pursued. The only way CP can transfer liability from driver to RK is by using the provisions of the PoFA 2012. Additionally the land is under statutory control of TFGM and as such there can be no keeper liability. This is not relevant land under POFA2012. The RK is not responsible for actions of the driver.
CP has failed to demonstrate who the driver was and therefore who is liable for the PCN. Reference is made to the Henry Gleenslade ruling and the relevant paragraph whereby CP have failed legally to transfer liability to the keeper.
Regarding landowner points please note that signatures have been blanked out. Only those of the contractor are evident and not the landowner. This is an altered contract with no end date and no map detailing the area covered by the contract.
Regarding signage the appellant requests that pages 38-40 be disallowed. The sign PRESENTED is large, bold and readable. The real sign does not form part of the parking area, is small & on the opposite side of the road. This conflicts with BPA CoP S18 para 2, Appendix B: The sign should be placed so that it is readable by drivers, without their needing to look away from the road ahead. Many CP signs are also in competition with yellow and blue signs, regarded as colour contrasts to avoid in the BPA guide.

Daver

Can you post the Popla response, what point did they uphold your appeal....I'm fighting 2 tickets from these clowns for someone!

Lounesbo

#81 above!

Daver

Sorry...somehow missed that! This is great as there is no POFA 2012 on non relevant land so they cannot transfer liability even if they had followed the requirements to the letter, therefore ALL Care parking tickets on Metrolink land are effectively unenforceable and can be used as free toilet paper!.....think I'll start collecting them en-masse! :0)

Lounesbo

Please see below edited response from TFGM received 2 days ago (one point of note is that an assumption has been made as to who the driver Was....)

18 September 2018
Dear

Re: Care Parking

Thank you for contacting Transport for Greater Manchester (TfGM) in relation to the management of parking at our Metrolink Park and Ride facilities.

As you may be aware, the tram operator, Keolis Amey Metrolink (KAM) sub contract the management of Metrolink parking facilities to Anchor Care Parking who have been patrolling the car parks since 2 April 2012. It is a free service for our Metrolink users and Anchor has been employed to manage the use of the facilities.

TfGM own the car park land and we mark out our own facilities to ensure that there is optimum parking for passengers but also access for maintenance and emergency vehicles to get to the stop platform at any time. We have identified that the area in which you chose to park your car was there to ensure access to the platform for maintenance and emergencies. It is deliberately not marked as a designated parking area for safety access.

I do recognise that your appeal to POPLA was successful and that your penalty charge notice (PCN) was overturned; it was allowed under POFA 2012, as POPLA were not satisfied that you, the driver of the vehicle had been identified. It is our opinion that the PCN was issued correctly in line with the terms and conditions of parking that are displayed in the car park.

The draft Bill that you have brought to my attention refers to the 'Parking (Code of Practice) Bill 2017-19' which has been proposed by Sir Greg Knight but is yet to reach the report stage (this is scheduled for 23 November 2018) in the House of Commons and therefore has some considerable way to go through the Parliamentary process before it is enacted. TfGM will have limited opportunity to influence the passage of the Bill through Parliament other than perhaps to make our support and approval known to Greater Manchester Authorities and Members of Parliament. Should the Bill receive Royal Assent it is likely that TfGM (Metrolink) would be one of the bodies consulted about the drafting of the actual code of practice being 'persons who appear to the Secretary of State to represent the interests of those who use, or may use private parking facilities' (as stated at S2(b) of the draft Bill) and therefore may have an opportunity to contribute.

Thank you for contacting me regarding this matter and I trust that the above information proves useful. If there is anything further I can help you with then please do not hesitate to contact me or our Head of Customer Engagement, Sean Dyball at Sean.Dyball@tfgm.com.

Yours sincerely

J n Lamonte
Chief Executive

Castle

Lounesbo wrote: »

I do recognise that your appeal to POPLA was successful and that your penalty charge notice (PCN) was overturned; it was allowed under POFA 2012, as POPLA were not satisfied that you, the driver of the vehicle had been identified. It is our opinion that the PCN was issued correctly in line with the terms and conditions of parking that are displayed in the car park.

Nice of them to confirm it was a penalty charge!

Coupon-mad

Lounesbo wrote: »

Please see below edited response from TFGM received 2 days ago (one point of note is that an assumption has been made as to who the driver Was....)

Hmmm, I see what you mean this is worded rudely, and a huge assumption:

it was allowed under POFA 2012, as POPLA were not satisfied that you, the driver of the vehicle had been identified.

:p