NTK (no PCN) & 2nd (POPLA) appeal

Coupon-mad

Hadn't realised that the keeper should also be referred to in the third person. As the PPC NTK was directed at them rather than the driver, perhaps unfortunately they did reply in the first person (as Keeper), but the driver was just referred to as 'the driver' throughout.

It's fine to call yourself 'I' when replying as keeper.

We just seem to bang our heads against a brick wall with some posters who reply as keeper but then write extra words like: 'I parked' or 'I didn't realise the sign applied to me'.

Hence we just say don't use 'me, myself or I' to stop people shooting their toes off!

OK so let's see your draft POPLA appeal and you can say 'I' as registered keeper, if that's all you are saying. So a line like: ''I am the registered keeper and I am not liable'' is OK!

Mr_Crabbs

OK, cheers CM & Redx.

First draft, see what you think, particularly the signs and if I've made any glaring errors or admissions!

//1drv.ms/b/s!AnvIwu97gFJXgUIyh07z22VqBF01

(sorry, can't post links yet. Add https: at the start.)

Thanks again

Le_Kirk

Here is your link but beware it doesn't have a preview and has to be downloaded.
ETA - Yes it does now!!


https://1drv.ms/b/s!AnvIwu97gFJXgUIyh07z22VqBF01

KeithP

Can I suggest you place the photographs at the relevant points within the appeal text, rather than all at the end?
This will allow the assessor to immediately picture what you are trying to say.

You show three pictures of 'Ambulances Only' signs and road markings.
What point are you making here?
Are you predominantly saying that it is a 'forbidding sign' and cannot be the basis on which a contract can be formed?
Or are you telling the assessor that the the driver parked in an 'Ambulances Only' space?
I think I know which, but I hope your use of the pictures doesn't sway the assessor the wrong way.

Mr_Crabbs

Thanks both. Keith, I'll admit I needed to walk away for a bit by the time I got to the photos; I will sort / edit and place them for the final draft, if I use them.

Mr_Crabbs

As no-one has objected I assume it's all good!

Keith, I think what I was really trying to show was that the notices only referred to specific bays plus the confusion & small size of the T&Cs.

One more question - would you normally outline the circumstances of the case in the appeal or just assume the assessor understood what was needed from the NTK etc?

KeithP

Mr_Crabbs wrote: »

One more question - would you normally outline the circumstances of the case in the appeal or just assume the assessor understood what was needed from the NTK etc?

That is very dangerous. Do not make that assumption.

Best that you spell out exactly where the PPC has failed.

Mr_Crabbs

Sorry, I wasn't clear - I didn't mean leave the assessor to spot the PPCs errors, I meant a preamble describing what's known of the circumstances from which the NTK arose

Coupon-mad

Yes, POPLA should be told this sequence of events as long as the appellant doesn't imply who this 'driver' was:

Driver, an NHS nurse, parked at hospital in course of duties. Due to lack of parking and urgency of situation was forced to park on a double yellow line but vehicle carries a permit allowing this.

Returned to vehicle in around 10 minutes to find parking warden obviously preparing to issue a PCN. Driver explained circumstances, parking warden said words to the effect of 'ok, be on your way'. No PCN issued.

Can you please copy & paste the text of your POPLA draft here? You will get more replies and more people looking at it than on a link that some will not trust or not be able to access at work, etc.

As long as you have time (POPLA codes last 30+ days) let more people comment this week first, before you upload the POPLA appeal.

Mr_Crabbs

Hello CM, yes, can do, no problem. I'm still struggling a bit with what is and isn't safe to post here.

POPLA code was issued 13.4 so I think that means we have until next Friday? (28 days)

Here's the text (edited a bit since the first draft):

As Registered Keeper of the above vehicle I have received a Notice to Keeper demanding payment for an alleged contravention on [redacted].


The circumstances that gave rise to the notice were as follows. The vehicle is used by NHS staff in performance of their duty and on this occasion was being used to collect urgent cancer treatments from the local hospital. Given time constraints and the lack of parking available the driver was forced to park on a double yellow line. The vehicle carries a local authority permit allowing this.


The driver returned to the vehicle in around 10 minutes to find the operator's representative apparently considering issuing a parking charge notice. When the circumstances were explained to the operator's representative he declined to issue a notice and apparently said words to the effect of 'be on your way'. The driver apparently assumed the operator's representative had exercised discretion on the operator's behalf. No notice was issued or affixed to the vehicle at the time.


On [redacted] I received a Notice dated [redacted] seeking to transfer liability to the keeper and demanding payment. An appeal to the operator was refused.


As registered keeper I appeal against the demand for payment and attempt to transfer liability submitted by the operator, Britannia Parking Group Ltd, on the following grounds:


No keeper liability: the Notice to Keeper does not comply with the Protection of Freedoms Act 2012.

The operator cites the Protection of Freedoms Act 2012 (2012 c. 9), states that the operator has the right to recover any unpaid part of the parking charge from the registered keeper and that the Notice to Keeper is given under Paragraph 9(2)(f) of the Protection of Freedoms Act 2012.


Schedule 4 of the Act places a series of strict tests on an operator in order to establish keeper liability. It is contended that the Notice to Keeper submitted by the operator fails those tests for the following reasons:


1. The Notice to Keeper was not submitted within the period specified in Schedule 4 to the Protection of Freedoms Act 2012.


Schedule 4 of the Act provides that where a relevant obligation arises under the terms of a relevant contract, the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle but that these rights only apply if certain conditions are met.


In particular, Paragraph 6 of Schedule 4 specifies that the creditor (or a person acting for or on behalf of the creditor) must have given a notice to driver in accordance with Paragraph 7, followed by a notice to keeper in accordance with Paragraph 8; or given a notice to keeper in accordance with Paragraph 9.


It is understood that the driver was not given a notice, nor was a notice affixed to the vehicle. The operator has not subsequently proven the issue of a notice to the driver and has submitted four images of the vehicle, all taken within one minute, none of which show a notice affixed. Therefore Paragraph 9 applies. Further, the operator has stated that the Notice to Keeper is given under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012.


Paragraph 9 sub-paragraph (4) specifies that a notice which is to be relied on as a notice to keeper must be given by handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or 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. Paragraph 9 sub-paragraph (5) specifies that the relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.



The Notice to Keeper submitted by the operator gives the date of the alleged contravention as [22.2.18] and the date of the Notice as [24.3.18], 30 days later. By the operator's own admission, therefore, the Notice to Keeper was out of time.


I therefore submit that the Notice to Keeper does not comply with the periods specified by the Protection of Freedoms Act 2012 and was therefore unlawful.

2. The Notice to Keeper does not contain the information required by Schedule 4 to the Protection of Freedoms Act 2012.


As outlined in 1 above, the Notice to Keeper submitted by the operator is reliant on Paragraph 9 to the Protection of Freedoms Act 2012. Paragraph 9 specifies that a notice which is to be relied on as a notice to keeper for the purposes of Paragraph 6 should contain certain information. In particular, the notice must:


Specify the period of parking to which the notice relates. In this case the relevant section of the Notice to Keeper states 'Observed From: at N/A' 'Observed To: at N/A'.

Inform the keeper 'that the parking charges have not been paid in full'. The Notice to Keeper given states that the driver is required to pay the parking charges in full, but does not specifically state that they have not been paid in full.

Specify the total amount of those parking charges that are unpaid, as at a time which is specified in the notice and no later than the end of the day before the day on which the notice is sent by post. The Notice to Keeper given does not clearly specify such a time.

I therefore further submit that the Notice to Keeper lacked the information required by the Protection of Freedoms Act 2012 and was therefore unlawful.
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No evidence of landowner authority: the operator is put to strict proof of compliance with the BPA code of practice

Section 7 of the BPA AOS Code of Practice Version 7 requires the operator to have written authorisation from the landlord to manage a site and take legal action on parking charges. It also requires the land managed by the operator, conditions and restrictions on parking control and enforcement operations, types of vehicles and the like to be defined.

It can't be assumed from the information available that the operator is authorised to make contracts with any or all categories of visiting driver or to take enforcement action in the operator's; own name, particularly at a hospital site where it is highly likely visiting drivers may be exempted.

Therefore as the operator has no proprietary interest in the land, I require the operator to demonstrate their authority to manage parking on the site and in this instance by producing an unredacted copy of the contract with the landowner, together with supporting information to that contract.

An unredacted copy of the contract and supporting information is required as it will give evidence which is highly unlikely to be available from a witness statement, including (but not limited to) conditions and limits on charges imposed by the landowner, exemptions for essential users and staff, charging days and times, site boundary, areas where enforcement does or does not apply, valid contract dates, contracting parties and so forth.

This evidence is particularly important as it is known that NHS Trust landowners often lay down exemptions to parking restrictions, or significantly reduced charges, for essential users and staff.

Misleading and forbidding signage; non-compliance with the British Parking Association Code of Practice; parking conditions not clear; no clear offer made.

Schedule 4 to the Protection of Freedoms Act 2012 and the BPA AOS Code of Practice version 7 discuss the clarity needed to make drivers aware of a parking charge. Additionally, consumer contract law demands clarity and transparency in the making of an offer.

In particular the BPA AOS Code of Practice version 7, section 18, lays down guidance for signage including the need for entrance signs at the entrance to the parking area and specific parking terms signage, which should be placed 'throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle' and which should be 'easy to see, read and understand'. These are reasonable standards to apply when making an assessment as appellant of the clarity, usefulness and visibility signage in place at the location.

In this case, there is an entrance sign to the site as a whole but not at the entrance to the parking area named in the Notice to Keeper. Moreover, the site entrance sign is at such a position that it is almost edge on to traffic approaching the site, and is out of, or only peripherally in, the vision of a driver turning in to the site and focused on where they are going at a busy site with heavy pedestrian and vehicular traffic.



Fig 1: Drivers'; view approaching car park /1drv.ms/u/s!AnvIwu97gFJXgUZhXmG6m2LyB7LD



Fig 2: Drivers' view turning in to car park, looking in direction of travel /1drv.ms/u/s!AnvIwu97gFJXgUcHjVTwMCazg5dm



For a contract to be formed there must be an offer. The BPA Code of Practice clearly states, in section 18.1, that 'A driver who uses your private car park with your permission does so under a licence or contract with you. In all cases, the driver's use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start'. The site entrance sign states 'Authorised Parking Only', and in smaller text 'terms and conditions apply - see notices in car park for more details' but gives no further detail and there are no notices in the parking area, or throughout the site, that clearly address the site as a whole.

Nor are full terms displayed - i.e. with the parking charge itself in large lettering - at the entrance, so it cannot be assumed that a driver drove past and could read a clear sign, nor parked near one.

The only signage visible within the site is adjacent to and refers to specific marked bays for specific uses. Typically these signs attempt to prohibit use except by specific vehicles; for example, this sign for an ambulance bay:


s://1drv.ms/u/s!AnvIwu97gFJXgUODS_j2IXbduyHG



Further, even this signage is unclear. In one place the operator's sign giving time limits for drop-off conflicts with the time limit given on an adjacent landowner's sign. In another, an operator's sign inviting disabled parking has no associated parking bay. Operator's signs on the same wall both permit drop-off and restrict parking to disabled only.



Signs for specific marked bays appear to use generic boilerplate conditions, referring to 'car park' and 'area' while the headline text on the sign refers specifically to that marked bay. Further, the conditions on these individual signs are displayed in a light font 3 - 4 mm high, or approximately 12 point size, on a dark blue background; difficult to read unless standing directly in front of the sign and within about a foot of it, and certainly not possible to read from a car; for example, the ambulance bay sign above:


s://1drv.ms/u/s!AnvIwu97gFJXgUTSycLjXt2i83AL




It is not clear that the operator intends these conditions to apply to the site as a whole; certainly to a typical driver the design and location of the signs would suggest that any small print on such a sign applies specifically to the marked bay the sign refers to. Indeed, even if the operator intends the conditions to be site wide, it is highly unlikely that, on seeing a heading in a large font referring to a specific bay, a driver would continue to read further if they had not parked in that bay.

A reasonable interpretation of the BPA Code of Practice, taking all information into account, would require the terms, if intended to apply to the parking area or areas as a whole, to be displayed far more transparently in larger and clearer lettering and on signs at the entrance to the parking area or which clearly addressed the parking area as a whole. Indeed from the Consumer Rights Act 2015, 'A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent. A consumer notice is transparent if it is expressed in plain and intelligible language and it is legible.'

This suggests that, in the words of a previous POPLA decision, '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 operator's signs would not be clearly visible from a parking space'

It is suggested such signage is woefully inadequate in an outdoor car park, in a healthcare setting where visitors and essential users are likely to be distracted or in a hurry and are unlikely to be focused on finding and thoroughly reading conditions in a small and difficult font which does not obviously apply to them.



The use of lines on the road and other markings to give drivers instructions must also be considered signage and so, under the BPA AOS Code of Practice, should also be easy to understand. If an operator uses statutory markings such as yellow lines as shorthand to denote a particular area, it is highly likely that drivers would apply the normal statutory meaning to those markings, including any exemptions.

Therefore for ease of understanding, any variation to the normal meaning of such markings used should be made clear to drivers entering the site. This is particularly important at this type of site which is used by vehicles which carry exemptions from statutory restrictions, as in this case. There is no indication at this site that there is any variation to the normal exemptions from such markings.


Further, the operator's signs are contradictory as to whether an offer is made. The forbidding nature of the entrance sign 'Authorised parking only' suggests no offer to contract is being made. Signs on marked bays ban general parking, yet the small print makes an offer to park which contradicts the headline message of the sign, as with the ambulance bay sign shown.


Under consumer contract law, terms must be clear and fair and the offer must be communicated clearly. There can be no acceptance if the other party is not fully aware of the offer. Given the paucity, confusion and contradiction on signage giving terms and conditions, the signs' apparent reference to specific bays only and the lack of any signage applying to the parking areas as a whole, it is suggested that a clear and fair offer was not made adequately enough for a contract to be formed. Further, where the wording of a sign is forbidding, there can be no offer and so no contract.

In view of the evidence I have seen for this appeal, therefore, I put this operator to strict proof of the appearance of their signs at the date and time of the alleged contravention, from the drivers'; perspective (not just stock images of a sign in isolation), from photographs taken in the same lighting conditions. I require the operator to demonstrate that full terms and conditions, clearly applying to the parking area as a whole, were clearly displayed and easy to understand for a driver in the context in which the vehicle was used and parked, and that an offer was clearly made and accepted in the circumstances.

Operator's use of discretion

In the POPLA Annual Report 2015, Henry Greenslade wrote that 'hospital cases, probably more than most, do require that operators step back from the bald facts and consider the whole picture', and is clearly encouraging the use of discretion.

Section 9.3 of the current BPA AOS Code of Practice states 'You must respect the needs of the emergency services to carry out their duties without your taking enforcement action against them. This means that you must not issue parking charge notices to ... vehicles being used by a ... health worker (such as a midwife or district nurse) who is on an emergency call at the address under control, and the vehicle is displaying a BMA badge or authorised Health Emergency badge'

While it is acknowledged that the vehicle user was on an urgent rather than emergency call, th vehicle carried an authorised badge and it seems that given the circumstances the operator's on site representative declined to issue a notice at the time, and was using his discretion in doing so. It is invidious for the operator to rescind such a decision made by their legitimate representative.


Other potential breaches of BPA Code of Practice

Section 19.7 of the current BPA AOS Code of Practice states 'If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost must be by at least 40% of the full charge'. Section 20.4 states 'The parking charge notice is the document you ... send to vehicle keepers asking them to pay the parking charges, if you do not have the driver's details ... POFA 2012 refers to the 'Notice to Driver', the 'Notice to Keeper' and the 'Notice to Hirer'. All are types of parking charge notice.'

The notice to keeper, the first notice issued, made no offer of reduced payment but instead stated 'the discounted period has now expired'. and so prevented payment at a reduced rate. This appears to be a breach of the code of practice.

Section 22 of the current BPA AOS Code of Practice states 'Under the Code you must have procedures for dealing fairly ... with any communication from the motorist. Section 22.4 states 'If a driver or keeper appeals a parking charge you must review the case and decide whether to uphold the parking charge and explain why it was issued and should therefore be paid'

The operator has not explained clearly why the appeal against the Notice to Keeper was rejected and in particular has not responded to the issue of the lawfulness of the notice given their failure to adhere to the time restrictions of the Protection of Freedoms Act. This appears unfair and against the Code of Practice.

Summary

[FONT=&quot]For these reasons and from the evidence I have seen, as registered keeper and appellant I believe the operator has not lawfully issued a notice to keeper and is not compliant with contract law, the Protection of Freedoms Act 2012 or the BPA AOS Code of Practice, version 7. For these reasons I appeal the operator's decision to levy a parking charge as it is unfair and unlawful.[/FONT]