Metrolink Care Parking appeal

gerbs

Hello,

Just wanted to check my understanding here if that's ok?

Keeper received a NTK in the post (dated 25/12, received 30/12) claiming a windscreen PCN Parking Charge Notice, not Penalty) was given on 21/11 for parking overnight - pictures on Care Parking website suggest there was one but this is the first the keeper has heard of it.
As such, the PPC appear to have followed the BPA guidance on timings.

It looks as though the keeper needs to appeal using the template in the Newbies thread and wait for rejection response and POPLA number, then use the resource here to produce a POPLA appeal which will focus on railway land so not relevant land, therefore NTK and PCN not valid, and signage inadequacy, etc.

Happy to receive feedback on anything missed or incorrect - thanks for any help.
Regards

Redx

correct

and use the search word METROLINK to find threads from last year, like the one by daver or some such name, their appeals can be adapted and used for popla, there are several examples you can crib from

appeal as KEEPER using the blue text template for now, no alterations, no blabbing about who was driving either

The_Deep

Read about the game you have become co-opted into.

It is the will of Parliament that these scammers be put out of business.
Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

gerbs

Hi again! Appeal rejected by PPC, POPLA number provided. I'll post my draft POPLA appeal - if anyone gets a chance to review and feed back I'd be really grateful.

gerbs

Dear POPLA Adjudicator,

RE: POPLA verification Code:
Vehicle Registration:
PPC: Care parking
Parking charge notice (PCN)
Alleged Contravention Date:
Location of alleged contravention: xxx Metrolink car park, owned by Transport for Greater Manchester
Date of notice:

I am appealing to POPLA regarding PCN (detailed above) from Care parking on the following grounds:


An appeal to Care Parking was made and rejected. The POPLA reference is XXXXXXX.
I contend that the parking notice was incorrectly issued for the following reasons:

1.Railway Land Is Not ‘Relevant Land’.
2. The operator has not shown that the individual who it is pursuing is in fact the driver.
3. No evidence of Landowner Authority.
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.
5. There is no breach of Railway Bylaw.

1. Railway Land Is Not ‘Relevant Land’
Under Schedule 4 of PoFA 2012, section 1, it states that:

“(1) This schedule applies where –
(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under PoFA does not apply, and therefore Care Parking are unable to pursue the registered keeper in lieu of the driver’s details.


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. I am the keeper appealing throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced.

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. 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 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 landboundary 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”

gerbs

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.

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 placed around the outside wall of the car park, are obscured and hidden in most instances when cars are present in parking spaces, and it is a simple matter to park in a space near the entrance without seeing the signs, let alone being able to read them while navigating safely around a car park. They are unremarkable, not immediately obvious as parking terms (especially given the nature of the car park is as a free parking area) 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. Areas of this site are unsigned and it is impossible to read the terms even at the entrance, especially in traffic with buses parked at the entrance and a small sign without a clear view of the terms and charges 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.
Furthermore, I include a video taken from the bay the car was parked, showing the lack of signs anywhere near it or indeed along the pedestrian route out of the car park to the tram station, where they could have been read.

Figure 1

Redx

its a bit of a cheek expecting members to read thousands of words in a long popla appeal, which are usually copied and pasted from others, plus you havent even highlighted any additions or changes you have made to save us reading the same stuff that is regurgitated in every similar popla appeal

but a few pointers on a skim read

1) popla have no idea what a PPC is , as mentioned in the NEWBIES thread, its forum speak on MSE alone, so use CLAIMANT or PARKING COMPANY, not PPC

2) the first rule of any POPLA appeal or defence is DO NOT HELP THE CLAIMANT TO WIN

in this appeal you have stated that TfGM own the land !!! (DO THEY ???)

I would be not stating that at all because I very much doubt it

plus in the railway section you allege that NETWORK RAIL own the land

well it cannot be both , can it ? - NO , it cannot


the point is to make them prove they are the legal landowner or lessee , not to state that they own the land because then you are on the back foot trying to prove "no legal standing"

it is for CARE PARKING to prove their case, so DO NOT HELP THEM

3) You should not be embedding links into your popla appeal, if its pictures etc , embed them

4) you mention a video of driving in, if this is true then how do you propose to add this to your popla appeal, ? because I am not aware that this can be added to any popla appeal

do they allow video attachments ? (or not)

if yes , in what format ? mkv ? , AVI ? , mp4 ?

proof read what you have written, do not copy and paste blindly, and highlight what isnt "standard" , so we know what you have added that isnt part of the usual appeal for a metrolink case which has been regurgitated and checked previously

yes include all the usual arguments

yes make it a long appeal

yes make them prove a contract flows from the OWNER through to the PPC care parking (Anchor)

is it a penalty ? or a parking charge ? its one or the other

if its a penalty, bylaws apply, in which case NETWORK RAIL own the land

do not expect us to proof read 5000 words of a popla appeal, that is your job, so make all the alterations apparent so we know what needs to be checked

etc

Coupon-mad

I think you should read this post (#39) which is extremely germane to your fight:

https://forums.moneysavingexpert.com/discussion/comment/75452818#Comment_75452818

You need to upload that Ombudsman decision as evidence and tell POPLA they can't wriggle out by misunderstanding what 'not relevant land' means, any more, because the Local Authorities Ombudsman has made a finding of fact about byelaws land and/or Council owned land being NOT possible for keeper liability.

This is true regardless of whether the Council or byelaws operator holds themselves out as relying on statutory control or operating the land in that capacity. The LA Ombudsman has declared that is 'irrelevant' and that this type of (Council or byelaws) land is always 'not relevant land'.

And thus the POFA can never apply. And thus, a keeper can NEVER be held liable.

gerbs

Redx - fair point, my apologies. Nevertheless thank you for your points


Coupon-mad - thank you also for your input.

gerbs

Claimant has now submitted their standard responses to POPLA including the anticipated "... this is just a template copied off a website ..." and I have been invited to comment in 2000 characters at most.
I am just off to read the threads again, but am anticipating using succinct sentences against several points of their evidence.
They have included many pictures which don't appear to support (or hurt) their case - just pictures in the dark of a barely-discernible black car. Is it worth me commenting on the complete lack of visible signage in those pictures, which seem to be a 360-degree tour of the vehicle?
Thanks

Redx

check previous METROLINK POPLA REBUTTAL threads (search words in bold) and adapt what they have said in their rebuttals

look for those errors and issues in the pack that enhance your case and try to use each and every point in your favour

start with the DAVER thread

https://forums.moneysavingexpert.com/discussion/5885355/metrolink-care-parking-pcn&page=2

also look at other rebuttals submitted for METROLINK appeals too

keep the rebuttal to 2000 characters, preferably just under