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

Lounesbo

Apologies for asking for the simple guide to locating templates etc but I keep struggling with the site! I know it’s me. You’re very kind taking the time to help me.
I think I go to forum jump from there parking fines?? And then newbies??
Fruitcake you are a star!

Le_Kirk

You have been on the forum since April and you still cannot find the NEWBIE thread which you should have read at the beginning of your quest. I'll put it down to the hot weather and post this link.

KeithP

Lounesbo wrote: »

Dear helpful team! the Popla appeal is due tomorrow...

Crazy! Absolutely crazy!

Why on earth have you left it until the last moment to post your draft appeal?

A whole month wasted.

Your sudden urgency is all of your making.

Lounesbo

I am definitely guilty of this offence! Hold my hands up.
And thank you for the link, really appreciated.

Lounesbo

Dear Keith
I have been away on holiday and then had guests staying.
I am very much aware of this and really do not need reminding of it. There is nothing helpful in your reply so it is probably preferable not to post on this thread the thread of people who you just want to criticise. They probably feel as rubbish and stressed as I do and further negative judgement is not really warranted

Fruitcake

Lou, you made a mistake, and you've had a rollicking from someone who wants to help but is frustrated about your mistake.

Forget all that and get stuck into Post 3 of the NEWBIES. Copy and paste and post your draft here for checking before you submit it. Redx has already given the main appeal points you need to use.

So appeal points headings, numbered, at the beginning, then a corresponding numbered text for each of those points.

If tomorrow is day 28, then you have at least 3 days to do this. PoPLA codes last up to 32 days but I wouldn't let this slip until then just in case.

Coupon-mad

Agreed, you have several days yet to get this right, as per the NEWBIES templates in the third post of that sticky thread.

Lounesbo

Now accessed Newbies thread and have done second draft appeal based on what is considered to be the main salient points in this case. The template ideas still appear to be from 2016 but do seem relevant.
going to double check the font size of lettering of signs and take further photographs at the site entrance and from where The car was parked to add as an attachment. Grateful for any alterations/ corrections and have been unable to attach any links so am wondering how relavent that will be given the case as it stands?? Will attach The Beavis link however.

The careparking rejection letter states only have 28 days to appeal to popla??

And yes I continue to hold my hands up to being unprepared/late etc. Guilty as charged!!


Dear POPLA Adjudicator,

RE: POPLA Code **********

Vehicle Registration: *******
PPC: Care parking
PCN ref: ******
Alleged Contravention Date: **/**/2018
Date of notice: **/**/2018

I am appealing a parking charge 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 and there is insufficient notice of this.


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

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)!!!8212; (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further !!!8216;If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.!!!8217;

The NTK must have been delivered to the registered keeper!!!8217;s address within the !!!8216;relevant period!!!8217; which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.


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

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

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

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

Understanding keeper liability:
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 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 sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe 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 but in small lettering (see attached photographs) and the terms and conditions are only is mall font. Attached are photographs of the signs upon entrance (the main heading being that the car park is for metrolink passengers only) which are not easily legible and would cause an unnecessary obstruction to observe and absorb prior to parking. There are areas of this site where contrasting signs (those relating to the metro) are in very large font and easily readable in contrast to a much smaller sign related to Care parking.- i.e. at the entrance or where customers would immediately exit to catch the tram. Photographs at the site where the alleged obstruction occurred show the signs to be illegible and in fact unreadable. There are also contrasting signs referring to cycle lanes and Overnight parking which compete for attention. Additionally some signs are obscured by foliage and are becoming in need of repair (again please see photographs).

From the evidence I have seen so far, the terms appear to be displayed inadequately, both in terms of numbers and letters. The sign showing the terms and the 'charge' and placed high walls/poles/ 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 wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case.

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, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

I, therefore, respectfully submit that my appeal by upheld and the charge dismissed.

Yours Sincerely,

Coupon-mad

I am going to double check the font size of lettering of signs and take further photographs at the site entrance, etc... to add as an attachment.

No, don't put the Assessor to any 'work' of cross referencing separate attachments.

Embed your photos with some relevant wording explaining about them (not implying who was driving!!) into the signage point (removing the Signazon and Ebay links that no longer work and the words about those).

Don't take any pics where the terms can be read. Take pics that show whole areas with NO signs...

Lounesbo

Hello coupon mad please can you delete the bit of text copied as it has a blunder in it!!
That!!!8217;s very helpful about what to remove- shall edit now