POPLA Appeal - Non-Compliant Signage

ParkingFred

Hi,

I've read through all the advice on the forum and have appealed, been rejected and drafted my POPLA appeal.

Appeal reasons:

1.     A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2.     Railway Land Is Not ‘Relevant Land’.

3.     NCP Using Railway Byelaw for claims.

4.     Appellant not being the individual liable.

5.     Lack of standing / authority from landowner.

6.     Non-compliant signage.

My question is over the Non-compliant signage.

The template response from @Coupon-mad includes links that appear to now be out of date.  Specifically the Ebay link when talking about the viewing distances chart.

I've searched the forum and the latest POPLA appeal that includes this link I could find was the end of November 2021 and was still successful, but could have been working at that time.

I also searched the text in the quotes that follow the link to try and find an alternative webpage but to no avail.

Does anyone have an up to date/correct link I can include?

Thanks,

Fruitcake

No, the link doesn't work. It will be removed when C-m gets round to it.

Leave it out for of your appeal, but do include your own images of signs at the site plus the ParkingEye sign from the Beavis case of an example what a good sign should look like.
Everything else looks okay, so please poet your appeal here for checking before you submit it, but ensure you remove all personal data including PCN and PoPLA numbers.

ParkingFred

Fruitcake said:

No, the link doesn't work. It will be removed when C-m gets round to it.

Leave it out for of your appeal, but do include your own images of signs at the site plus the ParkingEye sign from the Beavis case of an example what a good sign should look like.
Everything else looks okay, so please poet your appeal here for checking before you submit it, but ensure you remove all personal data including PCN and PoPLA numbers.

Thanks Fruitcake.

I have the other images in, but haven’t included any of my own images as it implies within the template response that the operator should provide the photos to prove their signage complies, and then when they inevitably submit stock photos to then reply with actual photos to disprove them?

ParkingFred

Full Appeal for review - I have gone very slightly off piste in areas so have highlighted those sentences in bold.

Dear Sirs

 

As the registered keeper, this is my appeal about a Parking Charge Notice issued by NCP for an alleged breach of the company's terms and condition in the XXXX railway station car parking on the xxxxx 2021.

For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

 

POPLA Ref: xxxxx

NCP PCN Ref: xxxx

VRN: XXXXXXX

 

Summary of appeal:

1.     A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2.     Railway Land Is Not ‘Relevant Land’.

3.     NCP Using Railway Byelaw for claims.

4.     Appellant not being the individual liable.

5.     Lack of standing / authority from landowner.

6.     Non-compliant signage.

 

 

1.     A compliant Notice to Keeper was never served - no Keeper Liability can apply.

 

NCP Ltd 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)—

(b) has given a notice to keeper in accordance with paragraph 9.

 

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 14 days beginning with the day after that on which the specified period of parking ended.

 

The NTK was issued 80 days after specified period of parking ended and received 83 days after the specified period of parking ended.

 

As this operator has evidently failed to serve a 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. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

 

2.     Railway Land Is Not ‘Relevant Land’

 

Under Schedule 4 of POFA 2012, section 1, it states that:

“(1) This schedule applies where –

(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, POFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Since byelaws apply to railway land, the land is not relevant land within the meaning of POFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable, as this Act does not apply on this land. I ask NCP for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under POFA does not apply, and therefore NCP are unable to pursue the registered keeper in lieu of the driver’s details.

POPLA assessor Steve Macallan found in 6062356150 in September 2016 that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012.

 

‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’

 

3.     NCP Using Railway Byelaw for claims

 

By claiming charge is liable to them, it appears that NCP are attempting to claim this under railway byelaws. I reject this and put to them strictly to prove on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay NCP.

I also refer to Freedom of Information Act Request – F0013227 whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.

Therefore, any breach of byelaws is a criminal offence, not a breach of any contract NCP may say the driver entered in to. If the driver is found to have breached byelaws 14 (1-3), the resulting penalty is paid to the government, not to NCP or the railway. Further, byelaw offences are decided by the court, not by NCP – the parking company or railway can only allege the breach.

ParkingFred

 

4.     Appellant not being the individual liable

 

NCP has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103). 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. Any person(s), with the consent of the registered keeper, may drive a vehicle as long as the driver is insured.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be and as the Registered Keeper), 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.

Not being the owner of the vehicle, under the Railway byelaws the registered keeper of the vehicle cannot assumed to be the owner anymore than they can assumed to be the driver.

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 NCP is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and 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 NCP, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

 

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."

 

 

5.     Lack of standing / authority from landowner

 

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where. 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 authorised on the material date, 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. 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 CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

 

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

Section 7.1 states:

“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.”

Section 7.21 states:

“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.”

Section 7.3 states:

“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”

 

I do not believe that NCP’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a Train Operating Company (TOC) gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay NCP (not that a keeper can be liable anyway on non-relevant land and NCP cannot enforce byelaws themselves). NCP have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that NCP are entitled to pursue these charges in their own right.

In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put NCP to strict proof of compliance with all of the above requirements

 

ParkingFred

6.     Non-Compliant Signage - 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 from the a driver’s view at the site entrance, and is not visible from any parking spaces - 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, similar in appearance to un-related railway signage, 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 signs with the full terms displayed - i.e. with the sum of the parking charge itself in large lettering, and the full terms displayed on a single sign, - neither at the entrance nor elsewhere, 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 02/06/2016, 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.''

This case becomes more relevant when it is considered that at the time of the alleged contravention XXXXX station was; and still is, undergoing significant demolition and construction works to the station buildings, with temporary pedestrian walkways, site offices, traffic management, and construction site signage that are both larger and more prominent in and around the car park entrance that further obscure any signage/notices relating to the parking terms and charges.

 

From the evidence I have seen the terms appear to be displayed inadequately, in letters that are approximately half an inch high or .40 font size by this guide:

<guide link>

I put the operator to strict proof as to the size and font of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself, and to prove the location and number of signs required to be read to fully read the full terms of parking.

 

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

 

<viewing distance table link>

 

 

''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.''

 

''... Letter Visibility Chart shows the maximum reading distance for your sign to make the best impact, as well as the overall readable distance. A good rule of thumb is every 1 inch of letter height provides 10 feet of readability with the best impact. For example, 3” tall letters make the best impact within 30’; however, they can still be seen and read from up to 100’ away''

 

“… The font type that you choose can also impact the visibility of your text. Very thin fonts and script fonts can potentially decrease visibility. When choosing fonts, you should select a bold style that is easy to read and with sufficient spacing between letters (kerning).

 

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:

 

<case link>

 

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.

 

Taking all the above into account, I therefore respectfully request that my appeal is upheld, and the charge is dismissed.

 

Yours faithfully,

 

NAME

Date

 

 

Fruitcake

You need to include your own photos in the appeal. You can't introduce new evidence at the rebuttal stage, and you will only have 2000 characters to respond.

Other than that, it looks okay to me.

Coupon-mad

Agreed, looks good but some pics of that building work (if still there) would be a great addition.

You've seen the good news thread and BBC and other press articles today about the new Code of Practice?  That's why I was too busy to tweak a non working linky in the NEWBIES thread this past year and a half!

ParkingFred

Coupon-mad said:

Agreed, looks good but some pics of that building work (if still there) would be a great addition.

You've seen the good news thread and BBC and other press articles today about the new Code of Practice?  That's why I was too busy to tweak a non working linky in the NEWBIES thread this past year and a half!

Great thanks. Will add pics of the signs and building work. 

And yes, I’ve seen/heard the good news! Great work!

ParkingFred

Success!

NCP withdrew the appeal for a very strange/interesting reason:

‘Withdrawal reasons

Due to our current circumstances working from home we are unable to complete our evidence pack at this time therefore we withdraw this appeal.’

I’ve added to the POPLA appeals thread too.

Thanks all

Coupon-mad

Very good news!