PCN from PCL

Neel1991

Hello, 
I have gone through the newbie's thread and I have tried searching this forum but I did not see a similar case as to mine. 
I have received a PCN for not having a valid permit. Date of Incident 25th Jan at 11.18 am and it is for parking on private property. One can stay at the premise for 2 hours maximum, one has to use a Redde Payment App for parking. I had a valid permit from 10.00 to 11.00 am but only realised at 11.40 that I had not extended from 11.00 to 12.00 but to my surprise using the app I got the valid permit from 11.00 to 12.00. So in short I believe had a valid permit to park at the premise from 10.00 to 12.00 hrs. I did not stay beyond 2 hours. Do you guys think is it worth to contest? 
I will appeal to PCL guys who have issued the PCN but I do not have many hopes from them because they will contest based on the time when I bought the ticket. So my hope is on POPLA but before I proceed on doing anything I just wanted to get feedback from the community. 
I am sorry if this is a similar post and would also like to thank everyone in this community for providing a good platform for such issues and I am looking forward to your replies. 

Neel1991

Coupon-mad

One can stay at the premise for 2 hours maximum, one has to use a Redde Payment App for parking. I had a valid permit from 10.00 to 11.00 am but only realised at 11.40 that I had not extended from 11.00 to 12.00 but to my surprise using the app I got the valid permit from 11.00 to 12.00. So in short I believe had a valid permit to park at the premise from 10.00 to 12.00 hrs. I did not stay beyond 2 hours. Do you guys think is it worth to contest? 

Yes!

At POPLA stage, you need to embed an image of that top sign and point out that what you did has not contravened ANY t&c on that sign, i.e.

1  ''on arrival'' instructions were complied with = no breach of contract

2  N/A this is not a t&c that can be breached

3  complied with = no breach of contract

4  complied with = no breach of contract

5  N/A this is not a t&c that can be breached

6  N/A 

The sign continues 'breach of any term & condition will result in...blah blah'.  

Well, none as drafted on that sign were breached and the car was not there more than 2 hours, and the driver paid for the 2 hour stay whilst on the premises.  There is nothing about pay & display, nothing about not being able to extend your time whilst the car is still in the car park, and in fact the Redde system accepted payment for the second hour, and nothing about not being about to pay during that second hour, or how long you have to make payment for that second hour.

I don't understand what you have to do 'on arrival' though, if the first hour is free.  Surely you don't register for a parking licence for one hour using Redde but pay nothing...?  do you?  Then you only pay during the second hour?

Neel1991

Thank you for replying
The first hour is free but one needs to register the vehicle via Redde App and you have to pay for the second hour via the App. 

D_P_Dance

The signage we seems overwordy and in small print, it is very unlikely that a judge would consider this sign suitable to form a contract, read this

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

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.

Neel1991

@Coupon-mad - As expected they have rejected my appeal and sent out the POPLA code.

I have my draft ready, there will be some typo's I am still proof reading them. If possible can you have a quick look and suggest any addition or deletion.

Dear POPLA Adjudicator,
POPLA Reference number: Vehicle Registration number: I, the registered keeper of this vehicle, received a letter as a notice to the registered keeper. My appeal to the Operator –Parking Charge Limited –was submitted and acknowledged by the Operator on 14th Feb and rejected via an email dated 25/02/2020. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
1) The entrance signs are inadequately positioned and 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
2) The operator has not shown that the individual who it is pursuing is, in fact, the driver who was liable for the charge
3) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) No breach of contract - All parking terms were obeyed
5) No Material Loss to the Landowner – the vehicle was only ever parked on the day in question with a valid ticket displayed and during a parking period of 2hrs.
1) The entrance signs are inadequately positioned, lit and 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.
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.

Neel1991

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. Figure 2 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:
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.
BPA’s Code of Practice (18.2) 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.”
BPA’s Code of Practice (18.3) states:
“Signs must be conspicuous and legible, and written in intelligible language so that they are easy to see, read and understand.”
BPA’s Code of Practice (Appendix states:
Figure 2. Beavis sign
“If you think there are other circumstances where it is impractical or undesirable to have an entrance sign, you must tell us in advance and get our approval to amend the sign or not have one.”
“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material”
Figure 4. Actual photo of the entrance to the Car Park at Wileman Way from Turing Way (Entrance 2), there is no parking notice to be seen here.
Figure 3 shows a map with the car park on Wileman Way and along with two entrances (Highlighted in Figure). While Figure 4 shows the actual photograph of the entrance to the Wileman way from entrance 2. The entrance 1 is also very similar to entrance 2, does not mention/warn any information about possible parking sign notice/penalty. The Figure 5 is the photo taken from the car park during the day time. To emphasis further an actual picture is included of the car park during the late evening, the time when car was parked.
Figure 3. Map of Eddington-Wileman Way, to show the entrances to the car park
Figure 5. Actual photograph was taken during day time from the car park
It is straightforward to conclude from Figures 3 to 7 that:
• There is no ground boundary marking indicating the start and end of the venue
• There is no clear sign indicating parking notice at the entry/exit
• No parking sign could be located at the Car Park, if it may exist it is hidden or placed in such way that it is difficult to find or locate
Do note that these pictures are taken in day light, the situation is more challenging to navigate in this car in night i.e. the actual time from when the car was parked in this car park. Figure 6 enclosed show that car park also happens to not have any proper bay markings.
Figure 6. The wileman way car park without any bay markings
All items above indicate the contravention of BPA’s Code of Practice (18.2) which 7 states: “you must also have a standard form of entrance sign at the entrance to the parking area.” and (18.3): “Signs must be conspicuous and legible, and written in intelligible language so that they are easy to see, read and understand.”
Figure 7. Non-functional pay machine at the Car Park but also no parking information next to it.
Firstly, it is impossible to locate the Parking Sign. On revisiting this car park, the only parking sign happens to be on a Light pole which can only be seen from few parking bays, secondly, this parking sign doesn’t comply with BPA’s code. It is inadequate and illegible in several ways, not least because of the sheer amount of text that must be read as shown but also with respect to its position and accessibility. The text is impossible to read from the ground level.
This case is more similar to the signage in POPLA decision 5960956830 on 02/06/16, 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. [...] Also the operator’s signs would not be 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.''

Neel1991

The September 2017 a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.
''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. [...] Also the operator’s signs would not be 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:
hxxp://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here: hxxp://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
''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.
''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
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 effective: '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 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:

Neel1991

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not 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 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.
2) 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 me 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 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. 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.''

Neel1991

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 a 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 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 Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:
7.2 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) before 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 breach of contract - The driver obtained a valid ticket for 2 hours i.e. the duration of parking, via the recommended ‘Redde App’. The copy of the ticket is enclosed below as a Figure 7, despite this the operator chose to ignore it during the appeal.
The operator says the option to pay for the parking ticket is via Pay Machine or the Redde App. To Driver’s observation, the Pay Machine was not functional and instruction to obtain ticket via the App were ambiguous. The operator states on its signage and the rejection appeal that a ticket must be bought on arrival but does not mention anything regarding the extension. Further to highlight how ambiguous the written-on parking sign are they are listed below for your reference 1) On arrival, parking ticket must be bought via pay machine or Redde App 2) No refunds for unused parking time 3) Park within designated bays 4) No parking on double yellow lines 5) The tariff applies during pay & display signs throughout the year 6) Parking in disabled bays is free for blue badge holders Based on these points there seems to be no breach of contract, all the points were complied by the driver despite the difficulty in accessing this signage. Further, all the rules/points are addressed below 1) ''on arrival'' instructions were complied with = no breach of contract. The first ticket was bought at 9.00 am on 25th Jan 2020 to park from 10.00 – 11.00 am and the second ticket was a mere extension from 11.00 to 12.00 am. There is no information regarding the extension.
Figure 8. Valid permit purchased via Redde App
The operator deliberately fails to acknowledge that the car was parked from 10.00 am but the driver noticed the car been scanned by patrol officer during the first hour of parking. 2) N/A this is not a t&c that can be breached 3) complied with = no breach of contract 4) complied with = no breach of contract 5) N/A this is not a t&c that can be breached 6) N/A To add further ambiguity to the mix the T&C the Redde App has its own version ‘rules’ for the same location, a Figure X enclosed below again fail to provide any concrete information regarding the extension of the parking time.
Well, none, as drafted on that sign and app, were breached and the car was not there more than 2 hours, and the driver paid for the 2-hour stay whilst on the premises. There is nothing about pay & display, nothing about not being able to extend your time whilst the car is still in the car park, and the Redde App accepted payment for the second hour, and nothing about not being about to pay during that second hour, or how long you have to make payment for that second hour. If the operator were genuinely serious they could have signed with proper information, instead of hiding the information and misleading people. It is a flagrant abuse of de minimus because no term or condition was ever breached, and PCL’s photographs prove it. It is a gratuitous waste of my time and yours as the POPLA Assessor. No Material Loss to the Landowner – the vehicle was only ever parked on the day in
Figure 9. Instructions before booking a permit on Redde app
question with a valid ticket displayed and during a parking period of 2hrs. PCL is seeking to make a charge for a car parked according to its terms and conditions for an unspecified period falling within the bounds of a FREE parking period. Since the car was removed before the 2-hour deadline expired, and all reasonable attempts to comply with the terms and conditions were made by the driver, there is no material loss to the Landowner whatsoever. As such PCL attempt to extract a charge from me, despite its failure to prove keeper liability, is completely unconscionable. This also constitutes a second ground on which it the operator is flagrantly abusing and gratuitously wasting my time, and yours as the POPLA Assessor. In closing, I would like to thank you for your diligent attention in dealing with my appeal. Having been forced to engage with PCL, I sincerely appreciate your time and patience in curbing the unethical conduct of this utter cowboy ‘industry’. This concludes my POPLA appeal

Neel1991

The easy way to read would be using this link, this also has all the figures. I am looking forward to suggestions. Thank you

hxxps://wetransfer.com/downloads/3c6c55c9d41c4666f5b30694a7bd7e2c20200315003521/a77e461aab42ebe69811598b1882409f20200315003543/3baf28