Ocean Parking - NTK issued after 14 days - help with POPLA appeal, please

djrucksack

I'm in a very similar situation to this chap here 

In a nutshell, my car was allegedly parked in an Ocean's Parking car park at a retail park in Stockport, and the PCN was sent to me later than 14 days. I appealed to Oceans Parking with the following e-mail: 

"Dear Ocean Parking, 

The Parking Charge Notice, ref XXXXXXX is invalid, as it was delivered outside of the 14 day period set out in: Section 9, Schedules 4, 5, and 6 of the Protection of Freedoms Act 2012.

The date of the alleged breach of contract was XX/XX/XX. The ‘relevant period’, referred to in Schedule 5 above, therefore begins on XX/XX/XX, and ends on XX/XX/XX. This Parking Charge Notice was issued on XX/XX/XX (already outside of the relevant period), and, according to schedule 9 above, can be assumed to be “given”, two working days later. 

Unfortunately, this means you are out of time. 

Regards,

XXXXXX XXXXXX"



They replied by e-mail with probably exactly the same PDF as WithnailandI received, one of which says:

• Ocean Parking have not issued this Notice to Keeper using POFA 2012, therefore your claims regarding this are irrelevant.

In the end, however, WithnailandI submitted a POPLA appeal, and the PCN was immediately withdrawn. 


I will base my appeal on his, along the lines of:

1. The notice to keeper does not comply with Schedule 4 of the Protection of Freedoms Act 2012 (hereon the POFA 2012)

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. The signs in this car park are not prominent, clear or legible from all parking spaces

4. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

Which option do I select to begin the POPLA appeal?


Thanks in advance.

Le_Kirk

Thank you for starting a new thread.

Coupon-mad

Because it's non-POFA, that will win at POPLA. You got lucky!

You choose the POPLA option that Post #3 of the NEWBIES thread tells everyone to choose.  I say that because I can see you've been there but missed it, so just need to slow down and re-read that post.

Umkomaas

Which option do I select to begin the POPLA appeal?

Other. 

I presume you've received your POPLA verification code from Ocean?

djrucksack

Coupon-mad said:

Because it's non-POFA, that will win at POPLA. You got lucky!

You choose the POPLA option that Post #3 of the NEWBIES thread tells everyone to choose.  I say that because I can see you've been there but missed it, so just need to slow down and re-read that post.

Thanks, Coupon-mad. 

So, it's 'OTHER' then? 

Do I need to go to town with a long appeal, or will I win simply due to the non-POFA 14 day thing?

Umkomaas

Do I need to go to town with a long appeal, or will I win simply due to the non-POFA 14 day thing?

A one-point appeal can win, especially where there is a clear PoFA failure (or non-use) by the PPC. Depends on your attitude to 'risk' - not that there's any real risk as a POPLA decision is not binding on the motorist. 

Most people add the usual stuff as an 'insurance' in the event of a POPLA assessor brain crash. Most of it is already written for you in the NEWBIES FAQ Announcement, third post, to piece together and incorporate into your appeal. 

djrucksack

Coupon-mad states:

'Here is a POPLA appeal you can copy & adapt, ONLY if you have a ParkingEye 'Golden Ticket':

https://forums.moneysavingexpert.com/discussion/comment/74575725#Comment_74575725 ' 


My appeal is basically the same, but it's not with ParkingEye, but Ocean Parking. Does that matter?

djrucksack

Here is my appeal so far, do you think it will be sufficient:

Dear POPLA,

On the DATE, Ocean Parking issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “remaining at the car park longer than the stay authorised”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

1. The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) and is not POFA compliant - Ocean Parking’s own documentation (attached) shows that the event to which they refer occurred on DATE, but they did not issue the PCN until DATE, 16 days later.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
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.
4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

Please see below for details:

1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12. Ocean Parking have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’

The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’

The NTK sent to myself as Registered Keeper arrived 18 days after the alleged event. - see the attached PDF from Ocean Parking with the ‘event date’ of DATE and the issue date of DATE (i.e. already more than 14 days later than the day after the alleged event)

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

At no point have Ocean Parking provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

I have contested this with Ocean Parking with regards to their PCN reference XXXXXX, but they have written to me (dated XXXXXX) to say I have been unsuccessful and provided POPLA reference XXXXXXXXX.

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:

LINK

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:

LINK

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:

LINK

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

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.''

...and the same chart is reproduced here:

LINK

''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:

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.

4) 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:

1. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
2. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
3. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
4. who has the responsibility for putting up and maintaining signs
5. the definition of the services provided by each party to the agreement

I sincerely hope you are able to help me.

Many thanks,

MY NAME

Umkomaas

I've just skimmed the part about PoFA and keeper liability. I might have missed it, but if Ocean have confirmed/admitted they are not pursuing under PoFA, then as the registered keeper of the vehicle they have no claim on you; they should pursue the driver, not the registered keeper. 

I'd get that in in the opening lines of your appeal. 

Coupon-mad

I was about to say the same, or add after this bit, that Ocean's rejection letter admitted this is non-POFA:

"I have contested this with Ocean Parking with regards to their PCN reference XXXXXX, but they have written to me (dated XXXXXX) to say I have been unsuccessful and provided POPLA reference XXXXXXXXX."

Le_Kirk

Don't use links, POPLA assessors will not chase links all over t'Internet, embed whatever you want to use in the appeal.