McDonald’s Enfield popla appeal

Elpscat

New poster here

A little confusing topic but if stick to the end and it should hopefully all make sense. I’ve posted to the pepipoo forum and I’m now here for some further opinions. I’m posting on behalf of someone else. 

Backstory is the alleged driver who went to mcds overstayed by 15 minutes. They are a real customer and bought food from the restaurant. Tried to contact the manager there but they couldn’t do anything about it. Link to the NTK that the hirer received online through their leasing company portal. it should be noted that it is addressed to the leasing company. 

The hirer thought that this was aimed at them and appealed the NTK as the the keeper out of ignorance using an appeal template that had previously worked but now seems was outdated. Appeal:

Dear Sir/Madam

I have just received your Notice to Keeper xxxxx for vehicle VRM xxxx

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give the invitation to keeper in the format prescribed by section 9 (2) (e) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.

The appeal was rejected with this reply:

Thank you for your correspondence received in regards to the above parking charge notice.

xx/07/2021

The terms and conditions of parking are clearly stated on the signs prominently displayed around this site. These include that parking is for customers whilst on the premises only and that there is a maximum permitted stay in this area of 80 minutes. Your vehicle remained on site for longer than the maximum permitted stay therefore we believe the charge notice was issued correctly and we are upholding it.

We are confident there are sufficient signs at this location bringing the terms and conditions of parking to the attention of motorists and it remains the driver's responsibility to check the signs where they park and comply with the terms and conditions.

We note your request to delete your data and cease further communications however we are refusing this, and should the charge remain unpaid, you may receive further correspondence as we believe we may continue to process the data as it is necessary for pursuing our legitimate interests in seeking payment of the outstanding charge revenue due to us. Should the charge remain unpaid we will disclose all correspondence to our agents and advisers in seeking to recover the outstanding sum due. We may also share data with the independent appeals service, POPLA, the BPA, and the courts if appropriate.

Time goes by and after posting on the pepipoo forum I learn that there is meant to be a Notice to Hirer issued. However, no NTH is ever received at the hirer’s address. To find out whether the leasing company even given the hirers details to the PPC a Subject Access Request was made to MET and it showed that a NTH was issued but never received. Seen in the reply

Elpscat

I forgot to add pics of NTK and NTH  

Only after requesting a SAR was it known that a NTH had even been issued. After some help on the forum and looking at old posts on here I was able to draft a popla appeal. I’d be grateful if I could have feedback on it. Thanks in advance!

A notice to keeper was issued on 29th June 2021. I, the hirer was notified to view the PCN via my leasing company through their online portal. As the hirer of _______ for the alleged contravention of ‘exceeding the stay authorised or without authorisation’ at Great Cambridge Retail Park, Enfield, EN1 3FD . I am writing to you and would be grateful if you would please consider my appeal for the following reasons:

1) MET has deliberately chosen not to use Protection of Freedoms Act 2012 (POFA). The Notice to Keeper is not compliant with Schedule 4 of the Protection of Freedoms Act 2012 due incorrect dates and procedure and thus there is no hirer liability.

2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

3) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

1. MET has deliberately chosen not to use Protection of Freedoms Act 2012 (POFA). There is no hirer liability as the notice to hirer is not compliant with Schedule 4 of POFA due to the dates and incorrect procedure.

I received a copy of the Notice to Hirer only after making a subject access request to MET 6th August 2021 but have never received a copy as outlined by 14 (6). It is now too late as the relevant period of 21 days have elapsed, failing to comply with 14 (5) ©. In any case the, Notice to Hirer did not comply with the requirements of the act, namely failure to supply the additional documents mandated by section 14 (2) (a). Therefore MET cannot therefore transfer liability from the driver at the time to me, the hirer.

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).

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

3.The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, 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:

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:

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.

Not only is the text extremely small but at night when it is dark the signs are impossible to see. As can be seen in the images attached to this appeal.

From a driving safety perspective, this restaurant is a busy area with lots of traffic. The small sign at the entrance is not clear enough, even more so at night while watching for traffic. 

The letters seem to be no larger than .40 font size going by this guide taken from signazon web blog attached to this appeal.

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

''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 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:

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.

I therefore, on the basis of the above laid out arguments request that POPLA uphold my appeal and cancel this PCN.

Fruitcake

The heading of your point 1 refers to the NTK, but the text of your point 1 refers to the NTH. They should be the same, refer to the NTH.

Your point 1 is very short. It should refer to the specific parts of the NTH that has failed the PoFA 2012 requirements. These should be both paras 13 and 14 of the PoFA.

If the hirer was not the driver, then they should say so.

Good photos, but I would omit the second and third images.

Note that the NTH is non PoFA compliant because amongst other things the documents detailed in para 13 (2) not been given as required by para 14 (3), and the warning in para 14 (5) c has not been given.

Elpscat

If you are referring to the first paragraph, I included the part about the NTK to the leasing company as it’s the only document I’ve ‘received’ from MET. No NTH has been physically received. I can remove the first paragraph if it’s not all that useful. 

For point 1 shall I include quotes from pofa?

Ill add a part about the hirer not being the driver

ill add the extra points about non pofa compliance as well

Fruitcake

Okay, if no NTH was ever received, then make that point 1, but how did you get to see a copy? You need to explain how you know about it and its contents to be able to say it does not comply with the strict requirements of the PoFA.

Refer to the NTH, how the hirer came to know about it, then make the points about the PoFA failures.

You could cover this by saying no PoFA compliant NTH was ever received, therefore the hirer cannot be held liable. That covers non receipt, and failures to include the mandatory warnings and documents.

Yes, include quotes from PoFA that the PPC has failed to comply with.

Elpscat

I received a copy of the Notice to Hirer only after making a subject access request to MET 6th August 2021 but have never received a copy as outlined by 14 (6)

This is from my first point. I requested all data MET had on me as I wanted to know what to base the appeal on. The Subject Access Request showed that a NTH had been issued as I stated in my first post.

Time goes by and after posting on the pepipoo forum I learn that there is meant to be a Notice to Hirer issued. However, no NTH is ever received at the hirer’s address. To find out whether the leasing company even given the hirers details to the PPC a Subject Access Request was made to MET and it showed that a NTH was issued but never received. 

I will add quotes of all pofa quotes that the PPC has failed to comply with when I can format a bit easier as I’m currently on my phone. Thanks for the help 

Elpscat

1. MET has deliberately chosen not to use Protection of Freedoms Act 2012 (POFA). There is no hirer liability as the notice to hirer is not compliant with Schedule 4 of POFA due to the dates and incorrect procedure.

Under paragraph 14

The documents mentioned in sub-paragraph (2)(a) must be given by—

(a)handing them to the hirer;

(b)leaving them at an address which is either—

(i)an address specified in the statement of liability mentioned in paragraph 13 (2) (c) as an address at which documents may be given to the hirer; or

(ii)an address at which documents relating to civil proceedings could properly be served on the hirer under Civil Procedure Rules; or

(c)sending them by post to such an address so that they are delivered to that address within the relevant period for the purposes of sub-paragraph (2)(a).

I received a copy of the Notice to Hirer only after making a subject access request to MET 6th August 2021 but have never received a copy as outlined by 14 (6). It is now too late as the relevant period of 21 days have elapsed, failing to comply with 14 (5) (c). 

Under paragraph 14 

(2)The conditions are that—

(a)the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(b)a period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and

(c)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.

(3)In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

(4)For the purposes of sub-paragraph (2)(c) a vehicle is to be presumed not to be a stolen vehicle at the material time, unless the contrary is proved.

(5)The notice to hirer must—

(a)inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the notice to keeper) may be recovered from the hirer;

(b)refer the hirer to the information contained in the notice to keeper;

(c)warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under paragraph 8 (2) (f) or 9 (2) (f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid;

(d)inform the hirer of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

(e)identify the creditor and specify how and to whom payment may be made; and

(f)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

In any case the, Notice to Hirer did not comply with the requirements of the act, namely failure to supply the additional documents mandated by section 14 (2) (a) and no warning the period of 21 days beginning with the day after that on which the notice to hirer is given, the creditor may recover from the hirer so much of that amount as remains unpaid of under 14 (5) (c). Therefore MET cannot therefore transfer liability from the driver at the time to me, the hirer.

Is this better?

Elpscat

The deadline for appeal is on the 25th. Any final pointers before I send it off? Thanks

Coupon-mad

Looks good to me.

I really hope you have done the Government Consultation by email and objected absolutely to ANY debt recovery fake 'costs' being added on top of a parking charge (of course) and told them what you think of them increasing charges to £130 instead of £100...which is already extortionate.

You have 6 days to do the consultation.  Please, please, do and do it by email so you attach evidence.  Spread the word, is closes within days, next week!

Also, I hope you've also registered for the Group Action, against the DVLA (open to anyone with a PCN since 2018?).  Gotta be in it to win it!  Nothing to lose, and it's genuine.

Read the threads about those important matters, they both need doing, right now, this week.

Elpscat

Thanks! I’ll get that sent over ASAP. Just found the thread about the consultation and will look into the group action also