Britannia - Postal PCN 16 days after offence

n0thappy123

Hey Coupon,

It was 30 minutes over the paid ticket. They have sent photos of the car entering and leaving the car park with time stamps and provided photos of the signage.

The template that you have spoken about has already been sent and their reply to it was posted a couple posts back.

Coupon-mad

The template that you have spoken about has already been sent and their reply to it was posted a couple posts back.

No it wasn't. The template points I am talking about are for POPLA stage and are not the first appeal template and are not in the first post of the NEWBIES thread.

n0thappy123

Oh sorry Coupon, misunderstood you.

Found your threads with templates on the signage and also land authority but cant find one on ANPR cameras etc, do you have a link for one of those?

So basically now have to file a complaint to POPLA stating all 3 of these templates with photo of the signage that Britannia sent to me?

Thanks

nosferatu1001

Its not a complaint
Its an appeal
You need to compile your appeal, using all applicable appeal points. POst it here first for critique, but if you are ONLY copying apoint from elsewhere say,s o we dont waste time reviewing it.

n0thappy123

sooooo they have just sent back a letter against the first PCN now (one from the OP)

Going to file an appeal with POPLA - is ok to just to file the appeal fighting the PCN being issued 16 days after the parking? Or does it need much more detail about signage etc?

Thanks

Coupon-mad

Yes your main point will be this, never implying who was driving:

The offence happened on the 24th April and the letter states the issue date was sixteen days later, on Thursday 10th May...

But don't say when it arrived. Instead say that under the POFA deadlines, a NTK posted on a Thursday is deemed delivered on the Monday (i.e. two working days later, which in this case - due to the weekend - would be day twenty 'deemed delivered'). So, the NTK was posted too late and arrived far too late, and there can be no 'keeper liability'.

Make that crystal clear.

Then do add:

'the appellant has not been shown to be the individual liable'

and

'no landowner authority'

and

'signage'

as templates (copied from the NEWBIES thread links in the 3rd post of the sticky), just to give you a safety net if POPLA have an occasional brain fart...

Show us the draft so we can check it. It gets uploaded as a PDF under 'OTHER'.

n0thappy123

Thank you Coupon for the guidance! How does this look for my first draft?


Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from Britannia on the following points:


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 the sum of the parking charge itself

Under the POFA deadlines, a NTK posted on a Thursday is deemed delivered on the Monday (i.e. two working days later, which in this case - due to the weekend - would be day twenty 'deemed delivered'). So, the NTK was posted too late and arrived far too late, and there can be no 'keeper liability'.!

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

The first communication!received!from Britannia Parking was a Notice to Keeper dated xxxxxx

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

Meanwhile, under Paragraph 9 (5), it states:
(5)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.

This would take the relevant period to be 24/04/18 to 8/05/18 inclusive.

Under the POFA deadlines, a NTK posted on a Thursday is deemed delivered on the Monday (i.e. two working days later, which in this case - due to the weekend - would be day twenty 'deemed delivered'). So, the NTK was posted too late and arrived far too late, and there can be no 'keeper liability'.!

In neither incidence, whether we are to assume Britannia Car Parks were issuing the Notice to Keeper under Paragraph 6 a or b, is the date of the Notice to Keeper compliant under POFA 2012, and therefore I ask that you accept my appeal as keeper.

Further, contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not specify the period of parking to which it related. It merely provided the Date of Issue, Time Observed and Issue Time. No definition is provided for these terms, such as whether they relate to when the vehicle allegedly entered and exited the car park or equate to the period of parking.

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 and there is insufficient notice of the sum of the parking charge itself


Neither the Notice to Keeper nor appeal rejection from Britannia Car Parks contain any photographic or any other evidence in support of Britannia Car Parks request for payment.!

The image of a sign provided by Britannia Car Parks in their rejection note of my appeal of this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself when viewed from a mobile or stationary vehicle, or on foot from below or in poorly lit areas or times of the day. The image of the sign clearly does not accurately reflect the conditions at the time it is alleged to have been present nor does it state its location in relation to the vehicle in question. The blue background is illegible even in bright daylight as depicted in the supplied image. From a moving vehicle, tiny white lettering against a blue background would be impossible to read from a vehicle or on foot from below.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:!

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.!

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

Fig 1 & 2


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:

link

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.!

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

link

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, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). 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 2.6.16, 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 the operator 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:

link

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

link

''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' 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' or even larger.''

''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:

link

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. 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. !!!8232;

Coupon-mad

Under the POFA deadlines, a NTK posted on a Thursday is deemed delivered on the Monday (i.e. two working days later, which in this case - due to the weekend - would be day twenty 'deemed delivered'). So, the NTK was posted too late and arrived far too late, and there can be no 'keeper liability'.!

No need to repeat the above twice, I'd say.

And remove the non-working eBay and Signazon links and words about them, from the last point (I keep meaning to update the template!).

n0thappy123

Coupon-mad wrote: »

No need to repeat the above twice, I'd say.

And remove the non-working eBay and Signazon links and words about them, from the last point (I keep meaning to update the template!).

Thank you, sorry do you just mean removing all the links? I cant specifically find the ebay or signazon one, am I being blind?

KeithP

n0thappy123 wrote: »

Thank you, sorry do you just mean removing all the links? I cant specifically find the ebay or signazon one, am I being blind?

Surely you weren't planning to send that with the word 'link' dotted around?

When you get around to replacing the word 'link' with real hyperlinks, then the suggestion is that you remove the ebay and signazon ones because they no longer work.