PCN for loading in disabled parking bay

Scarborough_Flyer

Have now spent some time reading through numerous pages about PCNs. I think I get the process needed. It may seem simple to those of you who have been doing it for years with '000s of posts but believe me when I say that as a Newbie it is quite overwhelming!
Just have one last query on the day 26 appeal template - Do I leave it all in about PDT machine, overstay of minutes, etc. even though in this case it clearly isn't? Also, should I add something asking PPC to clarify where in their 'contract' it states that disabled bays should not be used for loading?
Oh, and the Range have been no help whatsoever as expected.

waamo

If you are referring to the blue template in the Newbies thread then you sent it unaltered. It is designed to merely obtain a POPLA code without revealing who the driver was.

Scarborough_Flyer

Hi
Update on this following my appeal: We are now up to day 60 (PCN was 11th Jan) and I have not received NTK or a decision on my appeal with POPLA code. All I have had is a letter from UKPC asking me for the driver's details. I ignored this. That was nearly 3 weeks ago. What do I do if I don't hear anything? Is there a time limit for them sending me a POPLA code? I am feeling quite happy at the moment due to the lack of NTK!!

Below is my draft POPLA appeal which I assume I will need at some stage. I would be grateful if you forumites with experience could cast an eye over it and let me know any changes needed. I have used the newbies thread to put this together, although links aren't live on my draft. I have added a number 5 regarding loading in a disabled bay. Is it worth putting this in or should I just take it out?
Also, I read somewhere on here that I should use the PPCs own photo of the sign if it is not clear. Their photo on the website is out of focus and unreadable. However, should I not use my own photo of the sign that clearly shows it is different to those in Beavis case? i.e. £100 in small black lettering?


Parking Ticketing Limited
PCN Ref: xxxxxxxxxxxxxx Registration: xxxxxxxxxxxxx POPLA Code: xxxxxxxxxxxxxxx

POPLA Appeal Letter

Dear POPLA Adjudicator,

I write to you as the registered keeper of the vehicle XXXXXXXXXX.
I wish to appeal the £100 Parking Charge Notice (PCN) issued by Parking Ticketing Limited on xxxxxxxxx 2019 in xxxxxxxxxxxxxxxx.

I submit the reasons below to show that I am not liable for the parking charge and would be grateful if you would respectfully consider my appeal:-

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

5. At the time the PCN was issued, the vehicle was not parked but was being loaded. The operator has not shown that the vehicle was not loading, nor that the bay where it was situated should not be used for loading.


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

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

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

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

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

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor) (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 8.

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


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

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

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

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

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

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

Understanding keeper liability
There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement





4. The signs in this car park are not prominent, clear or legible from all parking spaces 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:





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:



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.

Here are the signs in this car park:











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:



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



''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:
here:



''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:



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 situated 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.

5. At the time the PCN was issued, the vehicle was not parked but was being used for loading goods purchased at the retail store served by this car park. The operator has not shown that the vehicle was not loading, nor that the bay where it was situated should not be used for loading.

The alleged parking offence occurred less than 8 minutes after the vehicle was moved to facilitate loading as shown by the time on the till receipt and the time on the PCN. Loading a vehicle is not covered by the car park signage and therefore no contract was entered into.

There is no standard practice for using disabled bays for loading with some local authorities allowing it and others not, e.g. A maximum of 20 minutes is allowed for loading or unloading in a disabled bay (Lambeth Council). In this case the time from the vehicle being moved to the disabled bay and the issuing of the PCN was less than 8 minutes as shown by the times on the till receipt and the PCN.

Based upon the above-detailed representations, I respectfully request that POPLA confirms its agreement with me that UKPC Ltd has no valid claim against me and that its PCN should be cancelled.

Yours Sincerely,

XXXXXX XXXX.

Umkomaas

Rather than plough through 3,300+ words of copy and paste stuff that we've seen thousands of times before in a jumble of permutations, especially as the PPC in the appeal is shown as Parking Ticketing Ltd, let's see whether this is ever going to get to POPLA.

Complain to the BPA that despite your initial appeal and the passage of 60 days since, UKPC have failed to make a decision on your appeal and have not provided you with a POPLA Code within 35 days, to enable you to exercise your right of dispute resolution, with an obvious breach of the BPA's Code of Practice.

steve.c@britishparking.co.uk

There's a good chance that the ticket will be cancelled.

Bradden

Good luck with the appeal. I had a similar case a while ago.. parked in a disabled bay in an empty hotel car park when desperate to use the bathroom.
I won.

Scarborough_Flyer

I emailed Steve Clark last week (thanks for that advice Umkomaas) complaining about UKPC not following code of practice. I was suprised to receive a reply within minutes to say they would contact UKPC to investigate.

Great result - I received a letter from UKPC yesterday to say the charge was cancelled and apologising for any inconvenience caused. Not sure if this was due to BPA intervention or the fact they realised no NTK meant they would lose at POPLA, or maybe a bit of both. Either way I'm pleased with the outcome.

Thanks to everyone on here for the advice and a lesson learnt - I had no idea this was all going on at car parks everywhere!!

D_P_Dance

They have wasted your time, now waste theirs. Complain to your MP.

On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Coupon-mad

Well done, Scarborough Flyer, and now I bet you will read all signs like I do. I was in the Peak District last weekend and took photos of the signs in the two car parks we used, just in case a scammer PCN comes back to bite us.

And we were passed an all-day ticket from someone (dodgy in some car parks) but we used it, as there were no signs whatsoever in the car park, just a machine.

Oh, and the Derby/Burton services says 'FIXED PENALTY £75' in the disabled bays. Premier Park are you reading this?! Coupon-mad is watching you and your signs.

Umkomaas

Scarborough_Flyer wrote: »

I emailed Steve Clark last week (thanks for that advice Umkomaas) complaining about UKPC not following code of practice. I was suprised to receive a reply within minutes to say they would contact UKPC to investigate.

Great result - I received a letter from UKPC yesterday to say the charge was cancelled and apologising for any inconvenience caused. Not sure if this was due to BPA intervention or the fact they realised no NTK meant they would lose at POPLA, or maybe a bit of both. Either way I'm pleased with the outcome.

Thanks to everyone on here for the advice and a lesson learnt - I had no idea this was all going on at car parks everywhere!!

Great result, and saved us a lot of work in pulling that POPLA draft appeal to pieces.

Steve Clark is a very helpful contact inside the BPA, as well as seeming to be a thoroughly decent human being.