APCOA PCN Bedford Hospital

Blondie16

Hi,
I received a PCN from APCOA for use of a private car park without a valid payment/permit at Bedford Hospital on 1/6/18. The PCN issue date is 19/7/18. A valid ticket was purchased and displayed at the time, but has now been destroyed as it was so long after the alleged incident. I have read the Newbies thread & submitted an appeal using the template this forum provided (many thanks for this) without admitting who was driving the vehicle. The appeal has been rejected & I now have a POPLA code. I have checked the code via the code checker & it appears valid. I have now drafted an appeal letter for POPLA & would greatly appreciate any comments or advice.
Thanks so much for your help.


A notice to keeper was issued on XXXXXX and received by me (the registered keeper of vehicle registration xxxxxxx) on XXXXXX for an alleged contravention of ‘Use of Private Car Park without a valid payment/permit’. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Keeper Liability nor Established
2) Unclear signage
3) Notice failed to arrive within relevant period
4) No standing or authority
5) No Legitimate interest


1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012.

The registered keeper is submitting this appeal and APCOA do not have the identity of the driver.

This operator has failed to comply with the following requirements of the Act and consequently cannot rely on its provisions for keeper liability:

Paragraph 8 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

Paragraph 9 (2)(h) of schedule 4 of POFA 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of "The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

In addition, the BPA code of practice also says, '20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

As APCOA has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act cited above, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver and there is no lawful way I can be held liable as registered keeper.


2) Unclear, inadequate mixed signage at the entrance and throughout the site

At the entrance one is met by a multitude of signs and I put this operator to strict proof of how the entrance to the hospital appears from a car. Due to their positioning and the barely legible size of the small print, the APCOA signs (among all the Hospital Outpatient/Inpatient and multiple ward and treatment centre signs and directions within the site) are impossible to read whilst driving along the access roads.

The notice to keeper states ‘the alleged contravention is a breach of the terms and conditions of use of the car park infrastructure, where signs are clearly displayed throughout the area showing these terms and conditions’. The alleged contravention took place within the car park at Bedford Hospital where clear signage does not exist on entrance or on exit of the car park. This is non-compliant with the BPA code of practice, 18.3, where parking signs need to display the terms of conditions that are in place when the driver is parking or leaving the vehicle. It is put to the operator APCOA to demonstrate adequate signage of clear terms and conditions supposedly on display within the car park that allow users to comply appropriately.


3) Notice failed to arrive within relevant period

The date of issue of the notice was 19/07/18 for an alleged contravention on 01/06/18. This is in excess of the period of 14 days beginning with the day after that on which the specified period of parking ended as described in Paragraph 9 (5) of schedule 4 of POFA 2012.


4) No standing or authority from the landowner to enforce this charge/this contravention

The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, APCOA must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.

I suggest that APOCA are certainly not empowered by the NHS Trust to sue patients and visitors for not parking in a bay.

In addition, Section 7.3 states:

“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.''

I put APOCA to strict proof of compliance with all of the above requirements and specifically relating to parking in a bay.


5) No legitimate interest - this charge is not like that in the Beavis car park/contract.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

The Beavis decision is not a silver bullet, not for any operator and not for APCOA. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.

There is no commercial justification for an agent of an NHS Trust to profit by disproportionately fining a visitor. Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:

LINK 1

LINK 2

''Charges should be reasonable for the area.''

''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

''NHS trusts should publish:

- their parking policy
- their implementation of the NHS car parking principles
- financial information relating to their car parking
- summarised complaint information on car parking and actions taken in response''


''Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

Contracts should not be let on any basis that incentivises additional charges.''

''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

None of the above was the case with this NHS Trust/APCOA. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests.


I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''

Yours sincerely
R Reeve
POPLA Administrative Team

The point here is, the new POPLA Service cannot and must not fail consumers by making any wrong assumptions about liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' automatically supersedes all other points of appeal about other parking charges in other car parks.

It certainly does not 'supersede' all other points and each case must still turn on its own facts.

Much more was said in the ParkingEye v Beavis judgment than findings about 'GPEOL' as opposed to 'commercial justification' and it did not shoot down any other parking charges, by default. In actual fact, this binding case law supports a consumer appellant in other parking charge cases like this one where it is clear that the stated policy and will of Parliament remains firmly against this charge in Hospital car parks and the charge fails the 'penalty' rule.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs and this flawed rationale for the sum, the Beavis case does not assist them at all.

Finally, if APCOA should try to suggest that there is any method outside of the prescribed statute (POFA) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators of the following facts about a keeper's right not to name the driver and, of course, still not be held in law as liable under Schedule 4:

LINK

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.”

I have made my detailed submission to show how the applicable law (POFA), case law (Beavis), the BPA Code of Practice and public policy (Government Policy re NHS car parks) undoubtedly supports my appeal, which I submit should now be determined in my favour.

Yours faithfully,

Registered Keeper

Umkomaas

Was this an ANPR camera capture or a windscreen ticket?

Your 'Signage' appeal point looks lightweight - there's a much more detailed 'Signage' template in the NEWBIES FAQ sticky, post #3 for you to adapt/use.

You haven't used the standard appeal point - The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge - which should follow immediately after any 'No Keeper Liability' appeal point. The NEWBIES FAQ sticky, post #3 also has a template for this.

You should amalgamate your current appeal point #3 with your first appeal point (No Keeper Liability) as it proves to the POPLA assessor that APCOA cannot hold you liable (provided this wasn't a windscreen ticket).

I noticed one incorrect spelling of APCOA (APOCA!) - just check there are no others.

How did PALS (Google it) at the hospital react to you asking for their help to get this overturned?

A weighty tome of an appeal will see APCOA not contesting at POPLA. You're nearly there.

Le_Kirk

In point ...
1. Keeper liability nor established

Although you do correct it in your expanded detail

Keeper liability not established

Blondie16

Umkomaas wrote: »

Was this an ANPR camera capture or a windscreen ticket?

Thank you for the super quick response and for all the comments.

It was an ANPR camera capture.

I have now adjusted the appeal and would greatly appreciate any further comments.
(it is with the next post as was too long to post in one go)

Thanks again.

Blondie16

Part 1

A notice to keeper was issued on XXXXXX and received by me (the registered keeper of vehicle registration xxxxxxx) on XXXXXX for an alleged contravention of ‘Use of Private Car Park without a valid payment/permit’. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Keeper Liability not established
2) Operator not shown individual who it is pursuing is the driver
3) Unclear signage
4) No evidence of Landowner Authority
5) No Legitimate interest

1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012

The registered keeper is submitting this appeal and APCOA do not have the identity of the driver.

This operator has failed to comply with the following requirements of the Act and consequently cannot rely on its provisions for keeper liability:

Paragraph 8 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

Paragraph 9 (2)(h) of schedule 4 of POFA 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of "The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

In addition, the BPA code of practice also says, '20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

As APCOA has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act cited above, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver and there is no lawful way I can be held liable as registered keeper.

Notice failed to arrive within relevant period

The date of issue of the notice was 19/07/18 for an alleged contravention on 01/06/18. This is in excess of the period of 14 days beginning with the day after that on which the specified period of parking ended as described in Paragraph 9 (5) of schedule 4 of POFA 2012.


2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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. 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
'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 cannot transfer the liability for the charge using the POFA.

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) 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

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.

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.''

...and the same chart is reproduced here:

LINK

''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.


4) 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

Blondie16

Part 2

5) No legitimate interest - this charge is not like that in the Beavis car park/contract.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

The Beavis decision is not a silver bullet, not for any operator and not for APCOA. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.

There is no commercial justification for an agent of an NHS Trust to profit by disproportionately fining a visitor. Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:

LINK

LINK

''Charges should be reasonable for the area.''

''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

''NHS trusts should publish:

- their parking policy
- their implementation of the NHS car parking principles
- financial information relating to their car parking
- summarised complaint information on car parking and actions taken in response''

''Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

Contracts should not be let on any basis that incentivises additional charges.''

''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

None of the above was the case with this NHS Trust/APCOA. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''

Yours sincerely
R Reeve
POPLA Administrative Team

The point here is, the new POPLA Service cannot and must not fail consumers by making any wrong assumptions about liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' automatically supersedes all other points of appeal about other parking charges in other car parks.

It certainly does not 'supersede' all other points and each case must still turn on its own facts.

Much more was said in the ParkingEye v Beavis judgment than findings about 'GPEOL' as opposed to 'commercial justification' and it did not shoot down any other parking charges, by default. In actual fact, this binding case law supports a consumer appellant in other parking charge cases like this one where it is clear that the stated policy and will of Parliament remains firmly against this charge in Hospital car parks and the charge fails the 'penalty' rule.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs and this flawed rationale for the sum, the Beavis case does not assist them at all.

Finally, if APCOA should try to suggest that there is any method outside of the prescribed statute (POFA) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators of the following facts about a keeper's right not to name the driver and, of course, still not be held in law as liable under Schedule 4:

LINK

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.”

I have made my detailed submission to show how the applicable law (POFA), case law (Beavis), the BPA Code of Practice and public policy (Government Policy re NHS car parks) undoubtedly supports my appeal, which I submit should now be determined in my favour.

Yours faithfully,

Registered Keeper

Umkomaas

Looks sufficiently weighty to send APCOA off to their usual scurry-corner.

Where you are showing 'LINK', if possible embed photo/scan which ensures the assessor (if it ever gets that far) can see things without having to chase around the Internet to open various webpages - far better to have everything directly in front of them.

Save your appeal as a .pdf file, attach it to the POPLA appeal portal (with a cross reference to your details) and submit it under 'OTHER'. Come back and tell us how long it took for APCOA to run away.

Coupon-mad

Looks great and will kill off APCOA, no worries.

As it was an ANPR/postal PCN, para 8 of the POFA has no application and talking about 'no creditor identified' has no legs and never did, so change this:

[STRIKE]Paragraph 8 (1)[/STRIKE] Paragraph 9 of the POFA, Schedule 4, includes this mandatory requirement:
''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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''.

APCOA have failed to do this - there is no 9(2)f 'warning about keeper liability' at all - and thus the operator has [STRIKE]have[/STRIKE] not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

[STRIKE]Paragraph 9 (2)(h) of schedule 4 of POFA 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of "The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper[/STRIKE].

[STRIKE]In addition, the BPA code of practice also says, '20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.[/STRIKE]

Guys_Dad

Out of time on its own is a winner. It should be point 1 as there is no wriggle room as long as you don't admit to being driver.

You don't even need the other points to be honest.

Blondie16

Thanks so much for all your help. Appeal has been submitted.