Ocean Parking - Metrolink Manchester

Coupon-mad

Paragraph 8(2)f very clearly mandates a timeline and required 'warning wording' about the registered keeper becoming liable.

Obviously that wording has to be in a NTK if the PPC wishes to hold the keeper liable.  Is it there?

It is literally a game of 'spot the difference' and it's not hard to decide if a NTK complies or not.

pret32

Hi Coupon Mad, if it’s ok I have put the NTK through a scanner and pulled the main body of text from it. See below the extract;

Payment for the Parking Charge Notice (PCN) OPXXXXXX is overdue. Please pay the amount of £100 now. 

We recently issued Parking Charge Notice (PCN) OPXXXXXX to your vehicle because it was parked in a manner whereby the driver became liable for a parking charge notice at Metrolink Navigation Road that we are authorised to manage by our client. This PCN was issued on the XXXXXX 2022 at XXXX and has not been paid. The reason we issued the PCN to the vehicle is as follows: Parked on Cross Hatching 

An opportunity was offered in which the reduced amount of £100 would have been accepted if payment was made within 14 days of the date of issue. In accordance with the signage that is clearly and prominently displayed on site, those drivers who break the terms and conditions of parking are liable to pay a charge. We have requested your details from the DVLA as the registered keeper of the vehicle (through the Reasonable Cause criteria of pursuing an outstanding parking charge). 

You are notified under paragraph 8(2)(b) of schedule 4 of the Protection of Freedoms Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full. As we do not know the drivers name or current postal address, if you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them. 

You are advised that if, after 29 days from the date of this notice (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This Notice is given to you under Paragraph 8(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of that Act. Should you provide an incorrect address for service, we may pursue you for any Parking Charge amount that remains unpaid. Should you identify someone, who denies they were the driver, we may pursue you for any Parking Charge amount that remains unpaid. Failure to pay the full amount of this notice within 28 days may result in the proceeding of debt recovery action and/or issuing court proceedings against you. Additional costs may be incurred. 

If you could review and advise if it is or isn’t compliant that would be appreciated. Grateful for your help so far. 

Coupon-mad

Yep that's compliant.

pret32

Ok thanks, now time for POPLA appeal. Byelaws and Metrolink land, operator not showing individual being pursued is driver, signage. Anything else that would suggest to be included? I’ve favourited a few threads which are similar circumstances to myself which will come in handy

KeithP

pret32 said:

Ok thanks, now time for POPLA appeal. Byelaws and Metrolink land, operator not showing individual being pursued is driver, signage. Anything else that would suggest to be included? I’ve favourited a few threads which are similar circumstances to myself which will come in handy

But if the NtK is PoFA compliant, that means that the parking company is able to transfer any driver's liability to the keeper.
That in turn means that the parking company does not need to show that the 'individual being pursued is driver'. 

Coupon-mad

Except if the OP is able to show that this is not relevant land, in which case the PPC must never use that NTK which misleads the keeper that the POFA applies...when it sounds like it doesn't.

It will hinge upon what evidence the OP has that this piece of land is covered by byelaws.

Grizebeck

Coupon-mad said:

Except if the OP is able to show that this is not relevant land, in which case the PPC must never use that NTK which misleads the keeper that the POFA applies...when it sounds like it doesn't.

It will hinge upon what evidence the OP has that this piece of land is covered by byelaws.

https://tfgm.com/public-transport/tram/bye-laws

Umkomaas

Grizebeck said:

Coupon-mad said:

Except if the OP is able to show that this is not relevant land, in which case the PPC must never use that NTK which misleads the keeper that the POFA applies...when it sounds like it doesn't.

It will hinge upon what evidence the OP has that this piece of land is covered by byelaws.

https://tfgm.com/public-transport/tram/bye-laws

Section 14. 

Kill it at POPLA (no keeper liability - not relevant land), then formal complaint to the DVLA (misleading NtK). 

pret32

Thanks for all your comments. I've drafted the POPLA appeal using previous cases. Please let me know any thoughts or comments, or if it's good to be submitted. 

POPLA Ref: xxxxxxx

Ocean Parking PCN Ref: xxxxxxxxx

Dear POPLA,

I am writing as the registered keeper of vehicle XXXX XXX to lodge a formal appeal against PCN XXXXXX issued by Ocean Parking for the alleged breach of parking conditions at Metrolink Navigation Road Car Park. 

I contend that I am not liable for the parking charge on the grounds listed below and kindly request that they are all considered.

1. Railway Land Is Not ‘Relevant Land’

2. No evidence of Landowner Authority

3. The operator has not shown that the individual who it is pursuing is in fact the driver

4. Hidden, inadequate signage which are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

1. Railway Land Is Not ‘Relevant Land’

Under Schedule 4 of Protection of Freedoms Act 2012 (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”.

The location in question is not 'relevant land' as defined by PoFA 2012, as it is owned by Network Rail and is subject to the Railway Byelaws. 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 PoFA 2012. As I am the registered keeper, I am not legally liable as this Act does not apply on this land. I challenge the Operator 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 Ocean Parking are unable to pursue the registered keeper in lieu of the driver’s details.

2. No evidence of Landowner Authority

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 notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

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 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 CoP defines the mandatory requirements and I challenge 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 operator has not shown that the individual who it is pursuing is in fact the driver

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 appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and only Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

4. Hidden, inadequate signage which are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

Signs in this car park are not prominent, clear or legible from all parking spaces. It is submitted that the driver did not have a fair opportunity to read any terms and conditions. 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 Operator’s signs would not be clearly visible from some parking spaces. The terms appear to be displayed inadequately in letters less than half an inch high. I put the Operator to strict proof as to the size of the wording on their signs. As further evidence that this is inadequate notice, with Letter Height Visibility and perspective 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 and Conditions. The signs are sporadically placed and obscured in some areas and hidden by large vehicles parked. 

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 and expressed in plain and intelligible language and is legible.

(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.

A letter height of less than half an inch showing the terms and the 'charge' and placed high on a pole and in crowded small print is inadequate in an outdoor car park.

Where terms on a sign are not seen and not clearly marked 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 signs relating to 'Terms and Conditions' must be read while travelling into the site so makes their placement completely unacceptable. They are unremarkably not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together to fit more information into a smaller space can drastically reduce the legibility.

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. The judgement was binding case law from the Appeal Court and supports my argument, not the Operator’s case.

This was a victory for the motorist and so where terms on a sign are not seen and the area 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.

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

Yours sincerely,

pret32

Also, I came across the following Network Rail map, which shows the location of the car park and the station, which is both a Metrolink tram station and a National Rail train station. They share the same railway tracks.

I understand the map is 2010, and refers to Care Parking (which I believe is Ocean Parking previous name) and also to GMPTE (before it became TFGM in 2011). However should I use this as evidence for my first point, Railway Land Is Not ‘Relevant Land’ ? Photo below