POPLA Appeal

Resterday

Hi Everyone,

I have a POPLA appeal deadline of 6/12/22 and so am hoping for some feedback to my appeal post submission.

Please note no PCN window sticker was recieved and this has been confirmed through a SAR. All details should be apparent in the appeal.

POPLA Appeal Letter

Dear POPLA Adjudicator,

Please find a summary of the case to date as this is important in understanding the basis for this appeal:

 

·         Alleged parking contravention 6/3/22

·         First letter received (titled Demand for Payment of unpaid charge) from MB demanding payment of £155 giving no right of appeal or option for early discounted payment (dated  8/4/22)

·         Responding letter written stating no earlier correspondence received, that the penalty of £155 was unjustified and as the registered keeper, liability was denied. The fact that no right to appeal was offered was also contested (dated 15/4/22)

·         Gladstones Solicitors Letter Before Claim received (dated 6/5/22)

·         SAR request completed to MB (dated 20/5/22)

·         30 day hold put on case issued to Gladstones Solicitors (dated 20/5/22)

·         Response letter from Gladstones Solicitors upholding the £155 charge and stating their client MB did sent the initial PCN (dated 28th June)

o   Attached PCN claimed to have been sent was dated 9/3/22 and included the POFA (2012) schedule 4 wording

·         Response letter sent explaining no initial or follow up PCN had been received before the Demand for payment of unpaid charge letter was received and that no evidence had been supplied giving evidence of them being sent (dated 9/7/22)

·         MB letter acknowledging receipt of SAR request stating ‘postal issues’ for delay (dated 29/6/22)

·         MB letter received describing completion of an ‘internal audit’ (dated 21/9/22)

o   Acknowledgement made that no right to appeal had been given, that the initial PCN claimed to have been sent was not seen and thus they were happy for “all timelines to be reset in respect of the PCN at hand”.

o   Additionally the letter stated “we will re-issue the PCN effective today and this will afford you the right to appeal the PCN…”

o   Informed me that Gladstones Solicitors had been requested to “stand down their activities”

o   Letter also claimed a SAR file was sent on 11/7/22 which they claim was within the 1 month requirement

·         Initial PCN formally sent by MB (dated 22/9/22) after their letter dated 21/9/22 stated they were happy for “all timelines to be reset” and would “re-issue” the PCN

o   Comparing “re-issued” PCN to supposed initial PCN dated 9/3/22 that was not received until being sent as a copy by Gladstones Solicitors on 28/6/22, it was noted the clause in paragraph 3 regarding being notified under POFA 2012 Schedule 4 was omitted.

·         Response letter sent stating given initial PCN had only now been formally sent on 22/9/22 it was 4 months late and I as keeper could not be held liable (dated 29/9/22).

o   Additionally complaint made that no SAR file had been received despite now waiting 4 months which I would have expected would have shown signage (or lack thereof) and proof that no payment was made on SMS parking application register

·         Appeal formally sent on basis that no initial PCN had been sent and that there could be no keeper liability given non-conformance with POFA (2012) Schedule 4 (dated 29/9/22)

·         Response letter from MB stating that they had taken my appeal as a “complaint” (dated 20/10/22) with a further 14 days given for right of appeal

o   Response included SAR file which shows no photos of any signs, refused to share logged details of any possible SMS payment for the car and failed to provide any proof of infringement whatsoever

·         Again a resubmission of my appeal was made (dated 28/10/22)

·         Appeal rejected by MB with right to appeal to POPLA (dated 9/11/22)

 

Resterday

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from Minster Baywatch on the following points:


1. A compliant Notice to Keeper was not served within legislated time limits - no Keeper Liability can apply.

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

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


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

This operator 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

Furthermore, paragraph 9(5) states “The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.”

Therefore 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. As this operator has evidently failed to serve a NTK within the specified time limits, they have failed to abide by the strict requirements set out in PoFA 2012. Therefore it can be concluded that I as the registered keeper cannot be held liable to pay this charge. This is as the mandatory timeframes for issuance of the PCN have not been complied with given first notice was issued 33 days post the alleged contravention.


2. The operator 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. 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.

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 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 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 the Operator, 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.''

Resterday

3. 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).

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 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


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

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:

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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:

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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 when cars are parked in front of them. 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:

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

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''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:

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“The size of letters on signs is only one factor of visibility.  A rough rule of thumb is one inch per 10 feet.  A sign with one-inch lettering is best for viewing at 10 feet.  Examples of sign letter visibility:

 

30 feet is about two car lengths.  The best size for this distance is 3-inch letters.

4-inch tall letters work best at 40 feet and can be read at 150 feet.

6-inch tall letters work best at 60 feet which is the length of a bowling alley''.

The guideline for selecting sign letters advises the designer to multiply the letter height by 10 which is the best viewing distance in feet and to 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 judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case:

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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.

Coupon-mad

Looks good except change this because the first NTK wasn't posted until months later (the follow up after 33 days doesn't count):

 This is as the mandatory timeframes for issuance of the PCN have not been complied with given first notice was issued 33 days post the alleged contravention.

It wasn't. Are you including the timeline you posted in your OP, as a document for POPLA?

How about the other usual problem MB have (seen in other MB POPLA appeals) in that the signs likely have 'Bransby Wilson' offering the alleged contract, not MB? Can you get signage photos or tell us which car park this is?

Resterday

Thanks so much Coupon mad

 

Yes, I want to lead with the case summary to give context and then go into the appeal points

- I have altered the words you highlighted in bold to:

This is as the mandatory timeframes for issuance of the PCN have not been complied with given the first notice was properly issued on the 22/9/22 making this 200 days post the alleged contravention.

In regards to signage, I know that one entrance to the sight in York had no sign and another so small and white it would not be obvious. All other signage was well away from the park spot and would not be seen from the road.

Sadly I can't tell what the words were as the site is a building site now. I think MB were put in place to spite the local council who initially refused planning permission for the site to become student housing but permission was given since.

Is it worth questioning whether the car park had planning permission for charging?

Coupon-mad

Isn't there a legacy image from 2021 when you hop on a laptop and change the little date arrow, on GoogleStreetView?

Resterday

The car park is York, James Street

It only opened as a paid for car park probably on the date the alleged contravention was made and so no street view would be available - last image is Aug 2019

Resterday

The car park was actually accessed from Brinkworth Terrace via two entrances and was previously owned by Alton Cars

Resterday

Thank you for all the posts and guidance Coupon Mad. I have now submitted the appeal!

Resterday

A big thank you to Coupon Mad.

This comment of hers was correct: How about the other usual problem MB have (seen in other MB POPLA appeals) in that the signs likely have 'Bransby Wilson' offering the alleged contract, not MB? Can you get signage photos or tell us which car park this is?

However, I won on a very different technicality:

POPLA assessment and decision

15/02/2023

Decision

Successful

Assessor Name

Richard Beaden

Assessor summary of operator case

The operator has issued a Parking Charge Notice (PCN) as the vehicle did not pay by phone.

Assessor summary of your case

The appellant has provided a document detailing their appeal and a copy of a letter form the parking operator. They have provided a time line of the correspondence sent between them and the operator. They dispute that a valid notice to keeper has been issued so only the driver can be held liable. They question the adequacy of the signs at the site. They have asked to see evidence that the operator has a valid contact to manage the site. The appellant has commented on the operator’s evidence.

Assessor supporting rational for decision

When assessing an appeal POPLA considers if the operator has issued the Parking Charge Notice (PCN) correctly and if the driver has complied with the terms and conditions for the use of the car park. The operator has issued a Parking Charge Notice (PCN) as the vehicle did not pay by phone. The operator has a burden of proof to show that the PCN has been issued correctly. Part of this burden is to prove that the terms and conditions have been breached. In this case the operator indicates that the appellants vehicle does not appear on the list of paid visitors. It has not provide a copy of the list it has described and as such has failed to prove that the terms and conditions have been breached. As I am allowing the appeal on this basis I do not need to consider any other grounds of appeal.

Coupon-mad

Perfect outcome!  More fool them!