Secure-A-Space residential parking charges

furious_resident

Here is my draft POPLA appeal. I've been back through the NEWBIE post and read the last year of appeal notices in the POPLA thread.

This is largely based on an appeal that has similar circumstances and was successful posted by Halftimeorange, and some signage additions from SamJ84s appeal.

Note that this is beautifuly formatted and tabbed in a Word document, which will become a PDF to upload.

Comments and feedback very welcome.

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Dear POPLA,
PCN Number: xxx
POPLA Verification Code: xx
I am the registered keeper of the vehicle xxxx, I wish to appeal the Parking Charge Notice (PCN) issued by Secure A Space.

As the keeper of the car, I have contacted the driver of the event, and quote them as follows “As a resident of the building to which this car park belongs, I am allocated a space in the car park (XX) to which this PCN relates. The space is allocated solely to the resident of Flat XX. This is outlined in the lease contract. The least does not specify a permit to be displayed.”

Therefore, I submit the reasons below to show that I am not liable for the parking charge:
1. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
2. No Evidence of Landowner Authority
3. The signs in this car park are not prominent, clear or legible from all parking spaces and ere is insufficient entrance signage at the site
4. Primacy of Contract held by the Keeper - this charge is incompatible with the rights under the lease - as decided by the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016.
5. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis.

1 - The operator has not shown that the individual who it is pursuing is in fact the driver who was 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. I am the keeper 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 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.''

2 - 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 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 in fact 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.
Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

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 23
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 signs in the car park are not prominent throughout the car park, clearly legible from within all spaces and entrance signage provided at the car park is inadequate

The signs in the car park are not prominent throughout the car park, clearly legible from within all spaces and entrance signage provided at the car park is inadequate

Section, 18.2 of the BPA Code of Practice states:

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of”.

The entrance signage provided at the car park in question is below eye level, and not easily visible when entering the car park from either of the entrances. Further, the level at which it is posted means that it is not visible to any driver entering the car park in a vehicle. If the driver were a resident or visiting a resident, upon exiting the vehicle the signs would not be visible as they are not passed when walking from the car park spaces to the front of the building.

Additionally, section 18.3 states,

“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.
I am of the view that the signage at the site are not legible to motorists, given the majority of these signs are written in miniscule font.

I am also of the view that the signage at the site - given the minuscule font size of the £100, 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:
Image of tweet provided in Coupon-Mad's template

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 parking sign from Beavis case provided in Coupon-Mad's template

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:

Link to font size guide provided by Coupon-Mad's Template

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

Link to font visibility guide provided by Coupon-Mad's Template

''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 on a wall or pole and buried in far too crowded small print, is woefully inadequate in an outdoor car park.

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:

Case link from Coupon-Mad's template

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.
Figure 1: Signage at car park sign
The image in figure 1 shows the main sign displaying terms and conditions. It is inadequate and illegible in a number of ways:
• There is a huge amount of text to be read.
• This text is crowded and cluttered with a lack of white space as a background.
• Key parts of the sign are in text that is too small to read without closely inspecting the sign at a minimum distance of 0.5m or less
• The section in white text at the bottom of the sign is in tiny text that is impossible to read
• These signs are not visible from all parking spaces within the car park

Figure 2 and 3: Entrance to the car park as seen from an approaching vehicle

The images in figure 2 and 3 show the views of the car park as a driver approaches either of the two entrances. Note that only figure 2 is relevant, as this is the sign that the driver of the vehicle would have passed to park in space 33 – space 33 cannot be accessed from the other entrance. However, both signs of the two signs are inadequate as an entrance sign in a number of ways:

• Both signs are below eye level and not visible to the driver upon approach.

• It would be a safety hazard for the driver to strain to read any of the terms on these 2 signs as they approached the entrance.

The requirements the BPA sets in Appendix B relating to entrance signage states:

1. The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.

2. Signs should be readable and understandable at all time

In this case, neither of the entrance signs are readable by drivers without a need to look away from the road ahead, nor are they are readable and understandable at all times due to the height at which it is displayed.

furious_resident

4 - Primacy of Contract held by the Keeper - this charge is incompatible with the rights under the lease - as decided by the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016.

District Judge Coonan dismissed the claim and refused leave to appeal, stating:

''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

Attached to this appeal is a copy of the tenancy agreement that states:

“1. This property comes with an allocated parking space (bay XX)” [My lease does state this, but I need to copy out the exact wording]

As in the case referenced above there are no conditions attached to the use of the parking bay and these cannot be unilaterally enforced outside of the contract.

This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis.

I also refer to the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised use of the bay, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for use of a parking bay by a driver who has legitimate business and rights to do so.

5 - This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis

This ticket concerns an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

At the Supreme Court in Beavis ( ParkingEye Ltd v Beavis), it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Therefore, any putative contract needs to be assessed on its own merits.
Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

Schedule 2: 'Consumer contract terms which may be regarded as unfair':
“A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…”
“A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.”
This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant mortgage for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed appeal point 4 shows that a District Judge in a 2016 case supports my view.

furious_resident

Hi all - can anyone offer any feedback on the wording of my POPLA appeal?

Should I also appeal the chaser letter from PCS for the second ticket, to start an appeal for that PCN? At the time it was received, it was supposed to have been cancelled, and was indeed removed from the SAS online system when I checked it to see if I could appeal it too.

The letter I've received from SAS with my POPLA code states that as I didn't appeak the second PCN (which I couldn't do via their own system) they will pursue debt recovery action, unless I pay the first PCN and then they will cancel it.

furious_resident

Sorry to chase this, but please could someone with a little more experience of these than me have a read and tell me if I'm missing anything?

Fruitcake

Personally I would put Primacy of Contract as point 1 and No Evidence of Landowner Authority as point 2.
If you win on either of those then you and any other resident can use that to beat the PPC and MA over the head, as well as a complaint to the DVLA for breach of KADOE contract and the BPA for breach of their CoP.

However, your opening paragraph contradicts your point 4, Primacy of contract.

As the keeper of the car, I have contacted the driver of the event, and quote them as follows “As a resident of the building to which this car park belongs, I am allocated a space in the car park (XX) to which this PCN relates. The space is allocated solely to the resident of Flat XX. This is outlined in the lease contract. The least does not specify a permit to be displayed.”

Either the keeper is appealing and the Lease/AST is in their name, or the Driver is appealing because the Lease/AST is in in their name.

The keeper cannot claim breach of Lease/AST if the Lease/AST belongs to The Driver.

As for the appeal points themselves, it looks OK to me.

furious_resident

Thank you Fruitcake.

So reworded as:

As the keeper of the car, and as the owner of the flat in the building to which this car park belongs, I am allocated a dedicated space in the car park (space number XX) to which this PCN relates. The space is allocated solely to the resident of Flat XX. This is outlined in the lease contract. The lease does not specify a permit is to be displayed when parking in the dedicated.

I will also reorder as you suggested.

Fruitcake

Revealing the driver's identity is sometimes not a bad thing in an own space situation.
You lose the protection of the Protection of Freedoms Act, but it can sometimes make it a lot easier by saying, this is my space, here is my lease than dancing around who was driving.

It is your decision but a judge might look favourably on a driver defendant. The problem is the small claims court is like playing judge bingo. They might decide that a driver should have seen the signs and known about the Ts and Cs of the oh so honest and upstanding parking company.

Coupon-mad

Is this correct, might be better for POPLA stage:

As the keeper of the car, and as the owner of the flat in the building to which this car park belongs, the residents of this flat are allocated a dedicated space in the car park (space number XX) to which this PCN relates. The space is allocated solely for the use of the residents staying in Flat XX. This is outlined in the lease contract. The lease does not specify a permit is to be displayed when parking in the dedicated space, which forms part of the demised property.

You will need to supply the front page of the lease and land registry showing you as owner, to prove you haven't just supplied a page from a random lease belonging to someone else.

furious_resident

I rather stupidly didn't do that.

I've now received the evidence pack - 20 odd documents and photos - and would be grateful for some help preparing comments on the operator evidence. I already have some myself, but not sure if I've missed any obvious clangers.

How is it best to share that?

Fruitcake

Go through their evidence line by line and rebut each point.

If they have failed to address any of your points then you say so stating they must therefore agree so the appeal must be upheld.

You have five appeal points so they must cover all five points.

Did you change the order of your appeal as I suggested?

Remember you only have 2000 characters and six days to do this.