Private Parking Solution - ticket despite having permit

D_P_Dance

Be sure to emphastse that the permit WAS on display.  If this gets to court consider a counter claim for data misuse.  Have you complained to your MP?

stor

D_P_Dance said:

Be sure to emphastse that the permit WAS on display.  If this gets to court consider a counter claim for data misuse.  Have you complained to your MP?

The keeper was sent the reminder notice. I will now draft my POPLA appeal, emphasising on the fact that the ticket was displayed. is it worth explaining that the ticket was displayed but might’ve been misplaced when shutting the door because it was really windy (due to storm Eunice). 

I was planning to complain to my own MP but not sure how effective that will be since I am not the keeper. I asked my friend to complain to his MP. 

Thanks 

Le_Kirk

Why are you still dealing with this?  It should be the keeper especially if the reminder notice has keeper's name on it.

Umkomaas

The keeper was sent the reminder notice. I will now draft my POPLA appeal, emphasising on the fact that the ticket was displayed. is it worth explaining that the ticket was displayed but might’ve been misplaced when shutting the door because it was really windy (due to storm Eunice). 

I was planning to complain to my own MP but not sure how effective that will be since I am not the keeper. I asked my friend to complain to his MP. 

Some of this doesn't compute. If you are not the keeper, then why are you drafting 'my POPLA appeal', and when your friend is writing to his MP?

I would just state that the permit was on display, it's the PPCs case to prove that it wasn't!

MothballsWallet

Trainerman said:

MothballsWallet said:

Coupon-mad said:

'Belligerent sorts' sums up the regulars here!

Does having to deal with the Home Office every few years make me even more belligerent?

Are you still even sane ???????

Yes, thanks to our super lawyer who helps us out every time (we're 3 for 3 so far, with the next step being citizenship): I think it's got to the point where the Home Office see her covering letter and think "we'd better be dammed sure of our side if we're going to reject this application or we're going to be in for an a$$-whooping on appeal").

stor

Umkomaas said:

The keeper was sent the reminder notice. I will now draft my POPLA appeal, emphasising on the fact that the ticket was displayed. is it worth explaining that the ticket was displayed but might’ve been misplaced when shutting the door because it was really windy (due to storm Eunice). 

I was planning to complain to my own MP but not sure how effective that will be since I am not the keeper. I asked my friend to complain to his MP. 

Some of this doesn't compute. If you are not the keeper, then why are you drafting 'my POPLA appeal', and when your friend is writing to his MP?

I would just state that the permit was on display, it's the PPCs case to prove that it wasn't!

Sorry I should’ve clarified. Although, my friend is the keeper, I was the driver at the time. I am drafting it but he will submit it. 

Fruitcake

Post the draft here for checking before submitting it. 

stor

Hello,

This is a draft of my appeal. Any feedback would be much appreciated. Many thanks! 

This appeal is submitted in relation to the ‘Parking Charge Notice to Keeper’ (PCNtK) dated REDACTED (ref REDACTED) issued by Private Parking Solutions Limited (‘PPS’) for vehicle registration number REDACTED. A copy of the notice is included for your reference. As registered keeper of the above vehicle, I wrote to PPS on REDACTED challenging the PCNtK. PPS responded on REDACTED stating that the appeal had been unsuccessful.  A copy of this response is included for your reference.

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

The appeal is made on the following grounds, full details of which are provided below:

1. Valid permit displayed

2. Disclosed Personal Identifiable Information – Clear breach of GDPR

4. Signs in this car park are not prominent

5. No evidence of landowner authority

6. Appellant not being the individual liable

 

Valid Permit displayed

A valid permit was displaced in the car. This was clearly raised as a point with PPS during the initial appeal to them. However, when making the decision they completely ignored this point, and was not acknowledged in their rejection letter. I have attached a copy of the valid permit below.

 

Disclosed Personal Identifiable Information – Clear breach of GDPR

 The appeal rejection letter, although containing my address, was address to someone else that’s not linked to the case. This is a clear breach of GDPR. I have attached the letter for your consideration.

 

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:

IMAGE

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

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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

IMAGE

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

IMAGE 

''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.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.

 

stor

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 - 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:

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

 

 

PPS 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. 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 appealing this PCNtK as the registered keeper. 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 Notice to Keeper.

In furthering the understanding of keeper liability, Henry Greenslade (the previous POPLA Lead Adjudicator) confirmed in 2015 that full compliance with PoFA was required to recover unpaid parking charges. He states:

'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.' (own emphasis added).

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be held liable if PPS is not using or complying with Schedule 4 of PoFA. This appeal demonstrates that PPS has not met the requirements of Schedule 4 (notwithstanding that the land in question is not ‘relevant land’ in any case). The burden of proof therefore 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. PPS cannot do this.

For the above [4] reasons, I ask as keeper of vehicle REDACTED that my appeal is upheld and PCN REDACTED cancelled.

Appendices

1) Parking Charge Notice to Keeper

2) PPS Appeal Decision showing breach of GDPR 

3) Picture of valid permit

 

Le_Kirk

A valid permit was displaced in the car. 

Should that be: -

A valid permit was displaced displayed in the car.