How to appeal a parking charge on a technicality?

Coupon-mad

Probably all of it because we never advise a short one-point POPLA appeal.

Mark2spark

I might be missing something here, but I suspect a belt and braces approach would be to send a SAR request to the MET data controller, - it's free to do - and see what they hold on you.
I have a sneaky suspicion that the *first* notice you got regarding the incident, they will claim to be the *second* letter they have sent you, the first quite possibly being within time and containing the correct PoFA wording.
Funny how a lot of these scam PPC's seem to be a victim of 'first letter failing to arrive'
Worth checking out anyway.

Johnnybravo192837

Thanks guy - guess I've taken my eye off the ball here.. was told the person who received the letter had 28 days to reply back. I think I'm on the 27th day (proper last minute dot com!!!)

KeithP

You actually have over thirty days to file a PoPLA appeal, so get yours sent sometime this weekend.

You don't need any more guidance... re-read the posts above.

Just get on and do it.

Johnnybravo192837

Thanks for the info! I'll hopefully get it sorted today!! Weekends are too good to be writing appeals

Johnnybravo192837

Ok... for anyone willing to lend a hand (many thanks to coupon-mad and others for all your help and so far)... I've lifted most of this from elsewhere and slightly amended. Bearing in mind, this charge was for someone I'm helping (I believe they were in the wrong and did not actually attend the store in question, parking and walking away, with all photos sent to by MetParking... BUT I am appealing on a technicality that their notice didn't comply with POPLA rules as the incident occurred in Feb, but was sent in May).

As a result.. would this be ok?? Any help would be MUCH appreciated. Plan to send across tonight(??)

(see below)

Johnnybravo192837

Dear POPLA,

On the XxX MET Parking issued a parking charge to vehicle XxX, of which I am the registered keeper, alleging “vehicle left in XxxX car park while the occupants left the premises”. A notice to keeper was issued through the post.
As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:
1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012, failing to establish keeper liability
2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
3) MET Parking lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
4) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver
5) The driver was parked in accordance with the highway code and signage fails to specify why this is not allowed
6) The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional
Charges) Regulations 2013.
7) There is no evidence that MET Parking have appropriate Advertising Consent for signage

1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012, failing to establish keeper liability
Under schedule 4, paragraph 4 of POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met as outlined in paragraphs 5, 6, 11 & 12.
In particular, conditions in paragraph 6 state that the NTK must be issued in accordance with paragraph 8. Paragraph 8 section 2 states that the NTK 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 be 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;

The NTK received from MET Parking fails to mention any of the points above. MET Parking are therefore unable to pursue payment from the registered keeper of the vehicle (myself), and no evidence has been supplied to establish who the driver of the vehicle is. As registered keeper, I therefore request that the parking charge be cancelled.

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
At no point have MET Parking provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

3) MET Parking lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As MET Parking 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

4) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver
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:
http://imgur.com/a/AkMCN
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:
http://2.bp.blogspot.com/-
eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg
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:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
''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:
http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-
/10000000175068392/g.html
''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:
http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html
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.
5) The driver was parked in accordance with the highway code and signage fails to specify why this is not allowed
Given the lack of adequate signage (as described above), the vehicle was parked according to the highway code
The Highway code describes the following as places where you must not park/stop
“240
You MUST NOT stop or park on
• the carriageway or the hard shoulder of a motorway except in an emergency (see Rule 270)
• a pedestrian crossing, including the area marked by the zig-zag lines (see Rule 191)
• a clearway
• taxi bays as indicated by upright signs and markings
• an Urban Clearway within its hours of operation, except to pick up or set down passengers
• a road marked with double white lines, even when a broken white line is on your side of the road, except to pick up or set down passengers, or to load or unload goods
• a tram or cycle lane during its period of operation
• a cycle track
• red lines, in the case of specially designated ‘red routes’, unless otherwise indicated by signs. Any vehicle may enter a bus lane to stop, load or unload where this is not prohibited (see Rule 140). Laws MT(E&W)R regs 7 & 9, MT(S)R regs 6 & 8, ZPPPCRGD regs 18 & 20, RTRA sects 5, 6 & 8,TSRGD regs 10, 26 & 27, RTA 1988 sects 21(1) & 36
241
You MUST NOT park in parking spaces reserved for specific users, such as Blue Badge holders, residents or motorcycles, unless entitled to do so.
Laws CSDPA sect 21 & RTRA sects 5 & 8
242
You MUST NOT leave your vehicle or trailer in a dangerous position or where it causes any unnecessary obstruction of the road.
Laws RTA 1988, sect 22 & CUR reg 103
243
DO NOT stop or park
• near a school entrance
• anywhere you would prevent access for Emergency Services
• at or near a bus or tram stop or taxi rank
• on the approach to a level crossing/tramway crossing
• opposite or within 10 metres (32 feet) of a junction, except in an authorised parking space
• near the brow of a hill or hump bridge
• opposite a traffic island or (if this would cause an obstruction) another parked vehicle
• where you would force other traffic to enter a tram lane
• where the kerb has been lowered to help wheelchair users and powered mobility vehicles
• in front of an entrance to a property
• on a bend
• where you would obstruct cyclists’ use of cycle facilities except when forced to do so by
stationary traffic.
244
You MUST NOT park partially or wholly on the pavement in London, and should not do so elsewhere unless signs permit it. Parking on the pavement can obstruct and seriously inconvenience pedestrians, people in wheelchairs or with visual impairments and people with prams or pushchairs.
Law GL(GP)A sect 15”
Given the inadequate signage, it is not unreasonable for a driver to park in accordance with the Highway Code in a manner that does not block the path of other pedestrians/drivers. MET Parking have ambiguously alleged that the vehicle was parked “out of bay”, however there has been no evidence supplied as to what constitutes a ‘bay’. The Highway Code should therefore be considered a reasonable approach to parking, and the PCN overturned.
6) The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the
Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.
The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. Due to a lack of appropriate signage, the Claimant’s notice fails to comply with all clauses of Schedule 2, as follows:
(a) the main characteristics of the goods or services, to the extent appropriate to the medium of communication and to the goods or services;
(b) the identity of the trader (such as the trader’s trading name);
(c) the geographical address at which the trader is established and, where available, the trader’s telephone number, fax number and e-mail address, to enable the consumer to contact the trader quickly and communicate efficiently;
(d) where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;
(e) if different from the address provided in accordance with paragraph (c), the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints;
(f) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated,
(g) where applicable, all additional delivery charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(h) in the case of a contract of indeterminate duration or a contract containing a subscription, the total costs per billing period or (where such contracts are charged at a fixed rate) the total monthly costs;
(i) the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate;
(j) the arrangements for payment, delivery, performance, and the time by which the trader undertakes to deliver the goods or to perform the services;
(k) where applicable, the trader’s complaint handling policy;
(l) where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;
(m) where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;
(n) that, if the consumer exercises the right to cancel after having made a request in accordance with regulation 36(1), the consumer is to be liable to pay the trader reasonable costs in accordance with regulation 36(4);
(o)where under regulation 28, 36 or 37 there is no right to cancel or the right to cancel may be lost, the information that the consumer will not benefit from a right to cancel, or the circumstances under which the consumer loses the right to cancel;
(p)in the case of a sales contract, a reminder that the trader is under a legal duty to supply goods that are in conformity with the contract;
(q) where applicable, the existence and the conditions of after-sale customer assistance, after-sales services and commercial guarantees;
(r) the existence of relevant codes of conduct, as defined in regulation 5(3)(b) of the Consumer
Protection from Unfair Trading Regulations 2008, and how copies of them can be obtained, where applicable;
(s) the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
(t) where applicable, the minimum duration of the consumer’s obligations under the contract;
(u) where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;
(v) where applicable, the functionality, including applicable technical protection measures, of digital content;
(w) where applicable, any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of;
(x) where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it.
Due to these significant breaches of the Regulations, it is submitted that I cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must ...”.
7) There is no evidence that MET Parking have appropriate Advertising Consent for signage
A search in London Borough of Brent’s planning database does not show any advertising consent for signage exceeding 0.3m2.

The UK government guidance on advertisement required:
“If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations).
Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under.
It is criminal offence to display an advertisement without consent.”
This clearly proves that MET Parking has been seeking to enforce Terms and Conditions displayed on illegally erected signage. I request MET Parking provides evidence that the correct Advertising
Consent was gained for signage exceeding 0.3m2, prior to the date to which this appeal relates (19/03/2019).

Fruitcake

Point 5 is irrelevant and has nothing to do with parking on private land. I don't know where you found it, but it is not in the NEWBIES.

Redx

Johnnybravo192837 wrote: »

BUT I am appealing on a technicality that their notice didn't comply with POPLA rules as the incident occurred in Feb, but was sent in May).

POPLA ?

you need to think again about the names or acronyms for government laws

POFA is what you meant

and as above, the Highway Code is irrelevant on a non-highway piece of land , ie:- private land

Coupon-mad

Your POFA point talks about paragraph 8 which talks about a NTK that follows a windscreen PCN. Was there a windscreen PCN first? I assume so, due to the allegation 'driver left the site'. Just checking.

Change point #5 to say:

5. There is no evidence that the driver left the site and this is denied. Even if MET have photos from that day, they have not shown that the person followed and secretly photographed without their permission was the driver of this car, nor have MET shown in evidence, what constitutes 'the site' or a tangible boundary that would inform and warn the occupants of a car, not to step beyond a certain point or they would be risking being stalked, photographed and fined.

In any case, by planting an employee to hide behind cars/in doorways taking unsolicited photos of individuals, then planning to share those excessively data-intrusive photos with POPLA (rather than showing just the usual generic photos of a car & a sign) the operator has breached the privacy protections within the GDPR and must erase that data.

If they have such photos, MET is hereby informed that they are expressly forbidden to share photos of the appellant's family/friends (driver, passenger, or not) and will be reported to the ICO if they do. Images of some people walking somewhere (if that is what MET have stored) is excessive data collection and not in itself, evidence of this contravention, given they cannot put names to faces.