Brittania parking - Appeal Response - Please help?

samsto

Dear POPLA,

On the XXXXX, Britannia Parking Group Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for the following alleged contravention: "Failed to make a valid payment"

As the registered keeper I wish to refute these charges on the following grounds:

1) 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.
2) The Notice to Keeper does not comply with the Protection of Freedoms Act 2012 (POFA).
3) Britannia Parking Group Ltd. 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.


1)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
At no point have Britannia Parking Group Ltd 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).!

I have contested this with Britannia Parking Group Ltd with regards to their PCN reference REFERENCE, but they have written to me (dated DATE) to say I have been unsuccessful and provided POPLA reference REFERENCE.!


2) The Notice to Keeper does not comply with POFA.

To support this claim further the following areas of dispute are raised:

• The Notice to Keeper (NTK) was delivered outside of the relevant period specified under subparagraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Upon reviewing the Notice to Keeper, Britannia Parking Group Ltd. have admitted the NTK fails to meet the conditions of the Protection of Freedoms Act 2012 (POFA).

The appellant feels that the operator has failed to adhere to the conditions outlined under Protection of Freedoms Act 2012 (POFA) and therefore breaches the documented legislation.!

3) Britannia Parking Group Ltd lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that Britannia Parking Group Ltd does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Britannia Parking Group Ltd be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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 were not prominent, clear or legible from all parking spaces to form any contract with a driver

The BPA Code of Practice clearly states that:!

18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.

Baring this paragraph in mind, there was categorically no contract established between the driver and Britannia Parking Group Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. In this case, which stated 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 notoriously nefarious industry. The Supreme Court itself on twitter, keen to point out the decision related to that car park and those facts only:

* IM GOING TO INSERT AN IMAGE INTO THE PDF *

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 and poorly placed – particularly to a driver entering the site – which is part of the main roadway. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that the operator of a vehicle could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

The ANPR systems terms and conditions are not fully communicated to each and every user of the car park. It may even be that cars wishing not to park in the operators car park are "captured" by these cameras.

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 the majority 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 operator’s 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:

* IM GOING TO INSERT AN IMAGE INTO THE PDF *

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

* IM GOING TO INSERT AN IMAGE INTO THE PDF *

''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.”

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 an example of a binding case law from the Court of Appeal offers further supports my argument:

* IM GOING TO INSERT AN IMAGE INTO THE PDF *

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.

Based on these points, it is believed that Britannia Parking Group Ltd are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that Britannia Parking Group Ltd be required to provide strict proof of exactly where the car entered the car park, where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective upon entering and parking. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.

In summary, these points demonstrate the claim by Britannia Parking Group Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from Britannia Parking Group Ltd.

Thank you for your time.

Kind regards.

What do you think of this so far? Is there anything I should add to it?

I'm not very good at this kind of thing so I really appreciate everyone's help! You guys are the best!

Redx

Looking good to me on a skim read

Popla codes last 32 days so await other comments if you can

samsto

Redx wrote: »

Looking good to me on a skim read

Popla codes last 32 days so await other comments if you can

I'm worried as I'm on day 28 currently.

It stated in my appeal rejection from them that:

"You must submit an appeal to POPLA within 28 days from the date of this outcome letter, by submitting an online case at ....."

I also read somewhere else online the following:

"Out of time appeals

POPLA will consider a late appeal in extreme circumstances. Each late appeal will be
considered on its own merit.

As the 10-digit verification code will have expired due to the 28-day timescale surpassing,
the appellant will be unable to submit their late appeal through our website. Instead, the
appellant will need to submit the appeal to our postal address or by email with a cover letter
clearly explaining the reason for the late appeal and any evidence they feel will strengthen
their reasoning."

Will I have to send them my appeal by email as a PDF?

Or will I still be able to submit it through their website, as recommended by selecting the "Other" option and uploading the PDF with images?

Sorry for this and thank you so much for your help!

waamo

Looks fine to me.

1505grandad

Small typo - para 4 - barring - ie 2 r's

Umkomaas

Baring this paragraph in mind .....

Bearing this paragraph in mind ......

1505grandad

Oops - may thanks Umkomaas

samsto

Thank you for submitting your parking charge Appeal to POPLA.



An Appeal has been opened with the reference **********



Britannia Parking Group - EW have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.



Yours sincerely



POPLA Team

So happy about this! Thank you so much everyone, couldn't have done this without your knowledge and help!



Should I post this on the POPLA decisions thread as well?

MistyZ

samsto wrote: »

Should I post this on the POPLA decisions thread as well?

Yes, for sure. It all helps.

Well done!

Egbert_Nobacon

Well done.

Nice and easy for you.

I always read the signs even if a car park I regularly use - just in case they have sneakily changed the terms and conditions.

Yes post it for others to read.