Can you check if this appeal is adequate please?

Fruitcake

I told you earlier that it is a pain to keep having to go to another site and then back here to comment on things.

To help others I have copied and pasted your draft appeal here for others to comment on.

I am the registered keeper of this vehicle[STRIKE], I[/STRIKE] and contend that I[STRIKE], as the keeper, [/STRIKE]am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1) Grace Period: BPA Code of Practice–non-compliance
2) 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
3) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) No Evidence of Period Parked – Evidence does not meet PoFA2012 requirements
5) Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
6) No NtK letter acting as a notice to the registered keeper has been sent to the address of the registered keeper therefore no liability can be assumed
7) 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

1) Grace Period: BPA Code of Practice – non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

BPA’s Code of Practice (13.2) states that:
“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”

BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.” The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply
with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
It is therefore argued that the duration of visit in question is not an unreasonable grace period, given:
- The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
- There is no marked parking bay through out the venue which causes confusion to the applicability of the Britannia Parking's contract, that was never entered into in the first place.
All factors discussed above serve merely to increase the time taken to:
- Locate a sign indicating entrance
- Locate a sign containing the terms and conditions
- Read the full terms and conditions
- Decipher the confusing information being presented
- Decide not to park and therefore not entering into a contract
- Return to car and safely leave the car park

2) Ambiguous, inadequate and non-compliant signage - no valid contract formed between Britannia Parking and the driver. There is inadequate signage of parking restrictions, terms and conditions, amount of parking charge and fine, etc as shown in the evidence uploaded with this appeal.

Britannia Parking have not placed adequate signage at either side of the car park entrance, therefore you have not given the “adequate notice” as required by Schedule 4 of the POFA.

Unclear signage breaches Appendix B of the BPA Code of Practice which states that contractual terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. In the absence of sufficiently prominent and detailed signage, the driver could not have been made aware of any charges applicable nor that a contract had even been proposed by Britannia Parking in respect of the alleged event.

There is no offer to park at the location by payment of a charge, and there is no description of what the driver would receive from such a contract. The Appellant submits that a valid contract was not offered; even if (non-compliant) signs were present, the driver was not offered the opportunity to enter into a negotiation in order to influence the contractual terms, nor given the opportunity to accept or reject any terms.

In addition to the absence of signage at the entrance to the car park and the signs nearest to the location my vehicle was parked were not prominent, clear or legible and there is insufficient notice of the sum of the parking charge itself.

There was no contract or 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.

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.

Additionally, Section 2.7 of the BPA Code of Practice states that “All AOS members must make sure that the AOS logo is prominently displayed in all their car parks, and make it clear to the public that they are governed by the Code.”

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 - 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) No Evidence of Period Parked. Photos from Britannia Parking show the car with timestamps at 12:26 and they do not provide evidence of the duration of the stay.
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”
Britannia Parking has photos of the vehicle with timestamp 12:26. At no stage does Britannia Parking explicitly provide evidence of the “period of parking to which the notice relates”, as required by POFA 2012.
It is not in the gift of Britannia Parking to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.
I require Britannia Parking to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the PCN.

5) Vehicle Images taken from Britannia Parking non compliant BPA Code of Practice.
The BPA Code of Practice point 20.5a stipulates that:
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The time and date stamp and [STRIKE]license[/STRIKE] licence plate have been inserted into the underneath (but not part of) the images. Given the vast area that has neither been bounded nor marked as parking restricted, any vehicle passing by can be captured by Britannia Parking's camera. As a result, these images cannot be used as the confirmation of the incident and Britannia Parking's claim was unauthorized.
I require Britannia Parking to produce evidence of the original images containing the required date and time stamp and images showing the car is actually parked in the location stated rather than just passing by. Given the unbounded nature of the venue, failing to produce such evidence would indicate the Britannia Parking has been using cameras to engage random license plate collection of all vehicles passing by and send NtK with the aim to extract penalty. Such action is no different from sticking parking tickets to all vehicles passing by.
Recent investigation (27 Apr 2018) by BBC (http://www.bbc.co.uk/news/business-43912327) shows that the private parking industry is unregulated and does not have any accountability.

Various cases show the industry’s priority is maximizing the penalty received from the motorist without due regard to the integrity of the evidence. Private parking operators are financially incentivized not to use the original image as evidence, but putting partial evidence together to generate a case biased towards generating a penalty fee. Based on the fact above, I require Britannia Parking to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

6) No NtK letter acting as a notice to the registered keeper has been sent to the address of the registered keeper therefore no liability can be assumed.

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

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

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

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

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

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

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Fruitcake

The first thing I want to know is, were there really images of the car on the NTD?

You haven't included the image of the signs from your initial post, and you haven't used the very long Inadequate signage point from the NEWBIES.

HappyUser

Fruitcake wrote: »

The first thing I want to know is, were there really images of the car on the NTD?

You haven't included the image of the signs from your initial post, and you haven't used the very long Inadequate signage point from the NEWBIES.

No, there were no images of the car on the NTD.
The images were on their website in the appeal section. You click to appeal and they show you the images of the car.


I will put the signs images in point 2) when I compose the final pdf.


OK, do I copy/paste the long Inadequate Signage point to replace my 2) then?


Also:
- do I remove the Beavis paragraph?
- which POFA point they fail by not sending me the NTK, since they still have until September to send it to me?
- which points in Schedule 4 paragraph 9 they fail with their NTD? Paragraph 9 links to 5-6 other paragraphs and becomes too complex to follow.

Fruitcake

HappyUser wrote: »

No, there were no images of the car on the NTD.
The images were on their website in the appeal section. You click to appeal and they show you the images of the car.


I will put the signs images in point 2) when I compose the final pdf.


OK, do I copy/paste the long Inadequate Signage point to replace my 2) then?


Also:
- do I remove the Beavis paragraph?
- which POFA point they fail by not sending me the NTK, since they still have until September to send it to me?
- which points in Schedule 4 paragraph 9 they fail with their NTD? Paragraph 9 links to 5-6 other paragraphs and becomes too complex to follow.

Yes, replace your signage point with the long one from the NEWBIES and include the image of the sign they have provided themselves. Point out it is their own image, and point out how it fails the BPA CoP and is dissimilar to the sign in the Beavis case.
Don't remove anything.
Don't use links but instead embed the images at the relevant points.
That way the assessor is forced to look at them.

I already told you that para 8 of Schedule 4 of the PofA applies, not para 9. You need to edit your appeal accordingly and only refer to para 8, then just state that no NTK has ever been received.
If one arrives before you submit the appeal then omit it.

After you submit it the PPC has an opportunity to comment on it, and you then have a few days to rebut what they say.
PoPLA codes last 32 days, so submit your finished appeal on day 31 to give the scammers no chance of getting a NTK out by day 56, the date of the alleged event being day zero.

HappyUser

Actually, they have not provided any picture of the sign themselves.
They have photos of the car, shall I include them to the appeal to show they are not compliant with the timestamps etc?

Redx

use everything you can to prove your case in your appeal

HappyUser

Which point in Paragraph 8 fails exactly?
This one? But the 56 days have not passed!

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

KeithP

HappyUser wrote: »

Which point in Paragraph 8 fails exactly?
This one? But the 56 days have not passed!

Read this paragraph from Fruitcake's post again... especially the last sentence...

Fruitcake wrote: »

I already told you that para 8 of Schedule 4 of the PofA applies, not para 9. You need to edit your appeal accordingly and only refer to para 8, then just state that no NTK has ever been received.
If one arrives before you submit the appeal then omit it.

tmorello

How do I create a thread I got ccbc letter and done Aos and SARS to relevant people I need to start a defence but don’t know my best angle to use, also I might need to change my name on here (big help needed)!

Le_Kirk

tmorello wrote: »

How do I create a thread.......

Click back from here until you are on front page of forum and there you will see a cunningly crafted button marked New Thread, it is blue but you will not/may not be able to see it if viewing the forum on a mobile.