Britannia Parking PCN POPLA Stage

usernamenotfound

Hi All,

I've followed the newbies thread and have reached the POPLA Stage. Here is a quick recap of my events:
1. Received PCN - NOTICE TO KEEPER through the post (nothing prior to this)
2. Used the "blue template" in the newbies thread to appeal on Britannnia Parking website
3. Britannia Parking sent email back declining appeal and giving a POPLA code

So my POPLA appeal is half-way done and I'm now in the position to get it finished and post it on this thread for opinions. The only issue is, I am unsure to the time limit of the POPLA appeal. I have had two opinions, one is within 28 days and the other is 32 days - stated by Coupon-mad

I have messaged this thread separately too to figure out which is correct, as a new user i cant provide the link but title is "Brittania Parking Ticket POPLA Advice"

Now if it is actually 28 days, I'm afraid I'll be a bit short of time to get it checked before submitting (depending on how active this forum is). My deadline would be Wednesday, hopefully this is not the case.

Any help would be appreciated, thanks in advance for all the info Coupon-mad has provided so far, a true hero to the people. :beer:

KeithP

Get your PoPLA appeal in within 32 days.

Don't waste anymore time discussing whether it's 28, 30 or 32. Just do it.

Let post #3 of the NEWBIES thread be your guide. It also tells you exactly how to submit your completed PoPLA appeal.

The_Deep

Nine times out of ten of these tickets are scams so consider complaining to your MP.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. 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, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but 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

usernamenotfound

Here is my POPLA appeal, let me know any comments.
Thanks

Dear POPLA,
Regarding POPLA CODE: (POPLA CODE),
On the (DATE), Britannia Parking Group Ltd. issued a parking charge notice highlighting that the vehicle (VEHICLE REG) 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 Notice to Keeper does not comply with the Protection of Freedoms Act 2012 (POFA).
2) 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) 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.
3) Signage does not comply with the BPA Code of Practice and are not prominent, clear or legible from all parking spaces and therefore are insufficient to form any contract with a driver.

1) 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) Britannia Parking; (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.’
For an operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The Driver of the vehicle has not been identified and the Notice to Keeper fails to comply with section 9 of PoFA 2012, specifically the following passage:

‘The notice must; f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given; (i) the amount of the unpaid parking charges specified under paragraph (d) has not 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 Notice to Keeper that was received omits such information. I have included in my POPLA submission the two pages of the notice which confirms that such text is absent. The only instruction in this regard is as follows:

‘As the motorist has contravened the terms and conditions detailed on the signage, a parking charge notice has been issued and is now payable to Britannia Parking….If you were the driver at the time of the event you are required to pay the parking charge.’;

Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. Therefore, the Notice to Keeper fails to comply with PoFA 2012 (section 9).
As this operator has evidently failed to serve a compliant 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 cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly elaborated.

2) 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.
In this case, no other party apart from an evidenced driver 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.

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.

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 the 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.''

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.

Bearing this 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 notorious industry. The Supreme Court itself on twitter, keen to point out the decision related to that car park and those facts only:

(IMAGE OF UKSUPREMECOURT TWEET)

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:
(IMAGE OF PARKINGEYE SIGN)
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.

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:

(IMAGE OF FONT SIZES)

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

(IMAGE OF LETTER VISIBILITY CHART)

''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 support for my argument:

(LINK TO VINE V LONDON COURT 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.

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.

usernamenotfound

Would it be wise to include the two pages of the Notice to Keeper letter as evidence to POPLA?

I cannot include an image but the wording is as follows:

"PLEASE DO NOT IGNORE THIS NOTICE
The signage displayed at the entrance of the car park and throughout states that the site is private land operated by Britannia Parking (the creditor). The conditions detailed on the signage must be compiled to or a Parking Charge Notice will be incurred. Motorists who choose to park their vehicle in the car park aare therby agreeing to be bound by these terms.
As a motorist has contravened the terms and conditions detailed on the signage, we have had reasonable cause to contact the DVLA for the keeper's details, and a parking charge notice has been issued which is now payable to Brittania Parking.
Failure to pay the full amount of this notice within 29 days may result in the proceeding of debt recovery action and/or issuing court proceedings against you. Additional costs will be incurred.
If you were the driver at the time of the event you are required to pay the parking charge.
Please see reverse of how to pay or transfer liability."

Correct me if I am wrong, but no where in these paragraphs does it state the information required by section 9 of POFA 2012. So would it help my appeal if I were to attach photos of this letter as evidence... Or should I not throw all my cards on the table just yet, so to speak, and see how Britannia will handle it first. Apologies for the ignorance, I'm unsure whether there's any tactical procedures to play out or if I'm being way too meticulous.

MistyZ

usernamenotfound wrote: »

Regarding POPLA CODE: (POPLA CODE),
On the (DATE), Britannia Parking Group Ltd. issued a parking charge notice highlighting that the vehicle (VEHICLE REG) had been recorded via their automatic number plate recognition system for the following alleged contravention: "Failed to make a valid payment"

I doubt it's important, but I don't like this bit. Just seems to make too much of the 'allegation'. I'd go with 'Re. Parking Charge Notice xxxxx'

Similarly, I don't see why you'd need to include a copy of the NTK because if the assessor cannot access that there's no hope!

You are right to be careful though ... interested to see what others think.

KeithP

I agree with MistyZ.

Leave it to Brit to supply their own evidence. No need for you to do it for them.

1505grandad

Two no. "2" in heading

Para 2 - "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."

* "keeper" missing here ...................

Perhaps include an ANPR reliability appeal point.


There are no details of the actual parking event in the thread so do not know whether Grace Periods are applicable as appeal points. Can you expand on the circumstances?.


re NtK - I believe that Britannia will include a copy in their POPLA submission

usernamenotfound

entry details 17:16
exit details 21:19
The NTK includes digital images.

How about this for ANPR:
"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."

usernamenotfound

Just posted the POPLA appeal online.
Awaiting results, hope everything goes accordingly

usernamenotfound

WOW thank you all so much for contributing. I have successfully appealed
Thank you for submitting your parking charge Appeal to POPLA.


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