Advice for POPLA appeal

cevixy

Hello, I would really appreciate any advice/opinions on this please. Five parking tickets were issued for a car park connected to a small block of flats. They were appealed once the letters came through, with no driver identified. The identical appeals were all rejected, and I am looking at a POPLA appeal. 

The reason for appeal was insufficient signage. Specifically, the car park signage is not in line with the BPA code of practice 19.1-19.10. 

There is no visible sign at the entrance to the car park as you approach it in a car (the entrance sign is on the inside of a pillar, out of sight of drivers approaching on the one way road). The only sign in the car park is so difficult to spot that I only noticed it when a photo was sent with the appeal. This is despite returning to the car park several times to check and take photos for the appeal. As a result, when the car was parked, the driver had no idea there were any conditions on parking the car there. They were given permission to park by a resident. 

I will attach photos showing the car park and signage, including photos I have taken today of the sign in the car park that was missed before. As you can see this is behind a large bush and has small lettering. 

Here are the grounds for refusing the appeal:

We are writing to inform you that your appeal has been unsuccessful. Your vehicle was not parked in accordance with the terms and conditions on site, and you have not provided sufficient evidence to show otherwise.

We acknowledge the comments made in your appeal however this does not exempt you from the terms and conditions of the site. It is the motorist's responsibility to ensure the permit is fully and clearly displayed in the front windscreen as per the terms and conditions, prior to leaving the vehicle parked on site. The signs state: “Retrospective evidence of authority to park on site will not be accepted.” Our time/date stamped photos show that at the time your vehicle was issued the parking charge it was not displaying a valid permit. Not displaying a valid permit indicates to the officers that the vehicle is unauthorised at the time of event.

We find this parking charge to be issued correctly and we are therefore unable to cancel the Parking Charge Notice. We must advise you that once the discounted settlement rate (If Applicable) passes it will not be offered again.

As you can see, their rejection does not address the signage. I would welcome any advice on how to approach an appeal with POPLA. Thank you in advance. 

Coupon-mad

Don't send the first and second photos to POPLA.  Send the ones WITHOUT a sign showing but first, embed the photo date from the metadata by using a 'photo stamper' online tool or by screenshotting each photo, which has a similar effect.  Then put those screenshots on a word doc image after image and invite POPLA to 'spot the entrance sign/other sign'!

If this is in the Brighton/Worthing area where OPS infest (I am from Sussex myself) you cannot visit residential flats here safely by car any more, because OPS are lurking there like thug clampers without a clamp.

Hidden signage is their speciality IMHO.

Be on the alert for their black & white signs which litter the whole area along the coast including as an eyesore on the seafront itself.

For how to do a winning POPLA appeal storybook - type appeal saved as a PDF, please refer to the 3rd post of the NEWBIES thread.

cevixy

Thank you, and yes it's Worthing! 

cevixy

Thank you again for signposting me to the third post on the newbies thread. It's pretty much identical to what I need!

KeithP

The sign on the gatepost that you have shown us states that the car park is for vehicles "parked fully within the confines of a marked bay".

Your photographs, and Google Street View, confirm there are no marked bays.

It is therefore impossible to comply with the stated terms.

"Void for impossibility" is the phrase.

Coupon-mad

Good point; needs to be in the POPLA appeal!

Boat_to_Bolivia

KeithP said:

The sign on the gatepost that you have shown us states that the car park is for vehicles "parked fully within the confines of a marked bay".

Your photographs, and Google Street View, confirm there are no marked bays.

It is therefore impossible to comply with the stated terms.

"Void for impossibility" is the phrase.

Well spotted @KeithP

It's unbelievable what these parasites try to get away with! 

cevixy

Thank you so much for your help. I have added void for impossibility as a fourth appeal point. This is my proposed appeal wording (will be saved as a PDF) and I will include a page with photos of the car park. I am also including a close up of the sign to show the marked bay wording.

The bulk of my appeal (first two points) is taken from the newbie post, and I have added the no evidence of landowner authority and void for impossibility reasons for appeal at the end. I also explain what photos I will be attaching. 

If I have made any errors or missed anything please let me know. And thank you again for your wisdom and generosity in helping. 

(have removed links and split between two posts as it's too long and I can't add links!)

I, the keeper of this vehicle at the time of the event, received a letter dated 29/12/2022 with regards to an event dated 24/11/2022. My appeal to the operator – One Parking Solution Ltd. – was submitted and acknowledged by the operator on 9/1/2023 and rejected via an email dated 11/1/2023. 

I contend that I, as the keeper of the vehicle, am not liable for the alleged parking charge as it has been both unfairly and unlawfully issued and wish to appeal against it on the following grounds:

1: 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.

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

4: Void for impossibility

1: 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 Sections 18-20 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 - 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 from newbie post

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 from newbie post

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. One is below eye line on the inside of an entrance pillar, and the other is on a wall behind a large bush. 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. 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 from newbie post

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

Link from newbie post

''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 from newbie post

''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 at the base of a pillar, 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, 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 more prominently placed 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 from newbie post

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.

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

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. 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.’'

cevixy

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 - 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

4: Void for impossibility

The sign on the inside of the entrance pillar states that:

“Parking is permitted for: Vehicles… parked fully within the confines of a marked bay”.

There are no marked bays in the car park, therefore it is impossible to comply with the stated terms. As a result, the contract is void for impossibility and the PCN was unlawfully issued.

I am also including photos taken of the car park, and the approach to the car park from the view of a driver on the one-way road with the appeal, demonstrating the insufficient signage. The photos collectively show the entire car park, demonstrating there are no marked bays. 

KeithP

cevixy said:

...the approach to the car park from the view of a driver on the one-way road, demonstrating the insufficient signage.

I hadn't noticed the one-way road issue earlier.

That shows us how devious the Claimant is.

Purposefully affixing the car park entrance sign to a face of the gate pillar so that it is impossible to be seen by the driver of an approaching vehicle.

Coupon-mad

Remove point 2 unless the NTK was non-POFA.