Do I have a golden ticket NTK?

mattyjay98

Coupon-mad said:

Can't get the link to work.  Why not copy & paste it here for more comments?

Hi coupon, hope you good. I can't copy and paste as my account too young for images and without it mucks up the formatting.

If you change 'hxxps' to 'https' it does work. If you still can't access please let me know and I will work out another way to upload/share.

hxxps://drive.google.com/file/d/1MHdkxmoplSk_VN2zcjvxPQ5m9wz9Tjo8/view

Thanks a lot

Coupon-mad

Not an image. Please copy the wording here.

You will more regulars looking!  People don't like links.

mattyjay98

Coupon-mad said:

Not an image. Please copy the wording here.

You will more regulars looking!  People don't like links.

Understood. Pasted below now. Shall I keep it all as is, including the bits about the 14 days not being adhered to, or like B789 says just focus on it being a non POFA NTK and liability cannot be transferred to keeper? 

Thanks

Dear POPLA,

On the 4th January 2023, Britannia 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

“Failure to make a valid payment”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via

post.

The Operator Britannia Parking has admitted "This Parking Charge Notice is not POFA compliant, however, payment

can still be sought under the old ‘implied-contract-with-the-driver’ rules used prior to POFA." Therefore, they must

lose this appeal because the driver has never been identified. Please see the email response from Britannia Parking

where the aforementioned admission can be found highlighted in blue:

PICTURE HERE OF BRITANNIA APPEAL RESPONSE WITH THE ABOVE PHRASE HIGHLIGHTED

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

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

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. Britannia

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”

Paragraph 9(6) states: “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered

(and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted;

and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and

Wales”

THE NTK IS NOT POFA COMPLIANT:

Date of alleged contravention: 23/12/2022

Date of notice on paperwork: 04/01/2023

Date notice received: 09/01/2023

This NTK is not compliant with the law set out in the Protection of Freedoms Act 2012 – S9(6); the day the letter was

received is 16 DAYS FOLLOWING THE ALLEGED CONTRAVENTION AND AS SUCH IS NOT POFA 2012 COMPLIANT. This

can be proven by means of a screenshot of a WhatsApp message dated 09/01, as well as the metadata of the image

that corroborates the dated timestamp showing when the image was taken. Please find these two images below.

META/EXIF DATA IMAGE HERE PROVING DATE AND TIME PICTURE TAKEN: This is the metadata/exif data of the

image taken on the date the NTK arrived

to my address in the post.

Please note the date and time “9 Jan 2023

10:57” which corresponds with the below

screenshot of the WhatsApp message.


WHATSAPP IMAGE SHOWING PROOF NTK ARRIVED ON 09/01/23: WhatsApp Screenshot

showing the date “9

January” at the top, as well

as the corresponding

timestamp of “10:57(am)”

which matches the

meta/exif data above.

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge. At no point have

Britannia 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 Britannia Parking with regards to their PCN reference REDACTED, but they have written to

me (dated 06/02/2023) to say I have been unsuccessful and provided POPLA reference REDACTED.

I sincerely hope you are able to help me.

Many thanks,

REDACTED

NTK FRONT IMAGE

NTK REAR IMAGE

Coupon-mad

Remove all the stuff about dates.

State that it is non-POFA because the NTK omits the mandated wording in paragraph 9 of Schedule 4, in particular there is no 9(2)f wording warning the keeper they will be liable.  Therefore, the keeper cannot be held liable and the operator admits this is a non-POFA PCN (blah blah).

You should ALWAYS also have the standard 'no landowner authority' wording and the standard 'unclear signs' POPLA point.

mattyjay98

Coupon-mad said:

Remove all the stuff about dates.

State that it is non-POFA because the NTK omits the mandated wording in paragraph 9 of Schedule 4, in particular there is no 9(2)f wording warning the keeper they will be liable.  Therefore, the keeper cannot be held liable and the operator admits this is a non-POFA PCN (blah blah).

You should ALWAYS also have the standard 'no landowner authority' wording and the standard 'unclear signs' POPLA point.

Evening coupon, hope you have had a good day. I have done as you have advised, copied and pasted new draft below if you could kindly review please? 

Couple of questions - Should I keep all the wording around signage verbatim? Should I keep the no keeper liability text as is, or should I use the link from the newbies thread?

Thanks again

Dear POPLA, 

On the 4th January 2023, Britannia 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 “Failure to make a valid payment”. 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 is not POFA compliant 

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) because the NTK omits the mandated wording in paragraph 9 of Schedule 4, in particular there is no 9(2)f wording warning the keeper they will be liable.

 

Therefore, the keeper cannot be held liable and the operator admits this as per their response stating "This Parking Charge Notice is not POFA compliant, however, payment can still be sought under the old ‘implied-contract-with-the-driver’ rules used prior to POFA."  Therefore, they must lose this appeal because the driver has never been identified. Please see the email response from Britannia Parking where the aforementioned admission can be found highlighted in blue:

INSERT PICTURE FROM BRITANNIA APPEAL RESPONSE HERE SHOWING THE ADMISSION. 

 

2)       The operator has not shown that the individual who it is pursuing is in fact liable for the charge. At no point have Britannia 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).

 

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:

INSERT LINK HERE


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:

INSERT LINK HERE

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:

INSERT LINK HERE

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

INSERT LINK HERE

''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:

INSERT LINK HERE

''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:

INSERT LINK HERE

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:

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

mattyjay98

I have had to remove all links from my comment as it would not let me post, sorry.

mattyjay98

END OF THE POPLA RESPONSE GOT CUT OFF DUE TO CHARACTER LIMIT:

I have contested this with Britannia Parking with regards to their PCN reference REDACTED, but they have written to me (dated 06/02/2023) to say I have been unsuccessful and provided POPLA reference REDACTED. 

I sincerely hope you are able to help me. 

Many thanks, 

REDACTED

Coupon-mad

That's fine, and yes use all the wording verbatim.

If you can get your own photos of the signs (showing a lack of them and/or how unreadable they are) then embed those images into the signage point with some comments about them, making sure that your images have the time and date of image in them (if need be, screenshot each photo so the metadata is displayed).

mattyjay98

Great, thanks for your help as always. I will do that tomorrow and probably ask you for another review (sorry).

Have a good evening

mattyjay98

Also, I have already got all my own pictures taken which I will use.