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POPLA appeal - please review

Hi all,

All photographs are enclosed here (remove spaces from link as I am not allowed to post links): imgur (dot) com/a/9OEog3u
CEL's evidence uploaded here (remove spaces from link as I am not allowed to post links): drive (dot) google (dot) com/file/d/1LNPwNUe8xWrwmwUXNIH6Zc3RRzNqiTOP/view?usp=sharing


The driver at the time (not myself), arrived late one night at a 24hr Starbucks in Manchester, near the Trafford Centre. Apparently, they did not realise that this car park had a 90min limit. I received a PCN a few days later from Civil Enforcement Ltd asking for £100 (reduced to £60) for an alleged overstay of the limit by 15 minutes.


I am at the stage of appealing to POPLA. I have in fact already submitted my appeal, which I will paste below. CEL have now uploaded their evidence (attached - I have redacted sensitive information), and I have only a few days to provide any comments. Please find CEL's evidence here (remove spaces from link as I am not allowed to post links): drive (dot) google (dot) com/file/d/1LNPwNUe8xWrwmwUXNIH6Zc3RRzNqiTOP/view?usp=sharing



I am trying to make sure I put forth the best argument I possibly can, as this is my last chance to influence the POPLA decision. The points I am going to raise (which I would like feedback on) are the following:
1) NTK was not PoFA compliant
2) Page 11 of their evidence pack shows a 'confirmation of authority' signed by the manager of the Starbucks franchise - this does not dmeonstrate landowner authority, nor does the contract meet the requirements of section 7 of the BPA code of practice, which states:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
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



3) The signage was not clear and no evidence has been shown that their signs are visible or legible in low light conditions
4) ANPR camera systems are not provably reliable and do not constitute evidence for a breach of contract


I would appreciate any tips, feedback, or suggestions on these comments and what I might add/change to maximise my chances of success. Thank you :)







The POPLA appeal that I have already submitted is pasted here below:

(1)The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and one at the start (of a minimum of 10 minutes each) Therefore two Grace Periods should be allowed amounting to 20 minutes altogether. The time parked at Starbucks over the 90 minutes allowed was 13 minutes 34 seconds therefore within the 20 minutes grace period. There was traffic build up on entering the small car park as the drive-through is on the same route as the car park and the exit and so vehicles are entering and leaving all at the same time. There is always a traffic jam. There is restricted width of the car park spaces causing difficulties. Hence the same on leaving the car park.

+see aerial map of car park and drive-through

BPA’s Code of Practice (13.1) states:

“Your approach to parking management must allow a driver who enters your car park .. to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA (13.2) states “You should allow the driver a reasonable grace period.

BPA (18.5) states if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you.BPA(13.4)does not apply in this case (it should be made clear - a contract was never entered into) it is argued that the duration of visit in question is not an unreasonable grace period. The Operator on this occasion have displayed on their PCN the entry and exit times from the car park. They are not the ‘period of parking’ although the law requires the ‘period of parking’. Taking into account the travel time to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory grace period as outlined above.

2) If Civil Enforcement want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and they have not issued and delivered a parking charge notice to the driver in the place where the parking event took place the Notice to Keeper must meet the strict requirements set out in the Schedule (particularly paragraph 9) I have had no evidence the Operator has complied with the BPA requirements for the PCN issued so require them to evidence their compliance to POPLA. 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 is insured or the driver was entitled to drive the car. I can confirm that they were. 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 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 Notice to Keeper. As the keeper of the vehicle it is my right 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 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 POFA in this case to show that I have not complied with terms in place on the land and show that I am personally liable for their parking charge. 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 “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 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 who is 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. No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is not attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK 6061796103 v Parking Eye 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. So 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) Signs in this car park are not prominent, clear or legible from all parking spaces. Also since the incident signs have been increased following complaints. It is submitted that the driver did not have a fair opportunity to read about any terms and Conditions as the signage is brand new. The car park was always timeless and no restrictions. The signage was not expected and 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 some parking spaces. The terms appear to be displayed inadequately in letters less than half an inch high. I put the operator to strict proof as to the size of the wording on their signs. As further evidence that this is inadequate notice, with Letter Height Visibility and perspective 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 and Conditions. The signs are sporadically placed and obscured in some areas and hidden by large vehicles parked and passing through the drive through.. 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 and expressed in plain and intelligible language and is legible.

A letter height of less than half an inch showing the terms and the 'charge' and placed high on a pole and in crowded small print is inadequate in an outdoor car park.

Where terms on a sign are not seen and not clearly marked 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.

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.

The signs relating to 'Terms and Conditions' have to be read while travelling into the site so makes their placement completely unacceptable.

They are unremarkably not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility .

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. The judgement was binding case law from the Appeal Court and supports my argument

This was a victory for the motorist and so where terms on a sign are not seen and the area 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.

4) No evidence of Landowner Authority the operator is put to strict proof of full compliance with the BPA Code of Practice. It is suggested that The Operator does not have proprietary interest in the land and merely acting as agents for the owner/occupier. I ask that The Operator be asked to provide proof they have the 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 keepers 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.

They must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken. 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

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 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. operator to strict proof of full compliance:

Not forgetting evidence of the various signatories are:

name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal document"

Comments

  • soolin
    soolin Posts: 75,006 Ambassador
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