Successful POPLA appeal against MET Parking Stansted - McDonalds and Starbucks

VolksSaver

Dear Money Saving Experts,

Just thought I would say a massive thank you and also share the appeal I submitted to POPLA against MET Parking which resulted in MET withdrawing the PCN.
I hope it will help someone else who may also fall victim to these "so and so's".

Dear Sir/Madam

 As the registered keeper, this is my appeal about a Penalty Charge Notice issued by MET Parking Services Ltd for an alleged breach of the company's terms and conditions in the Southgate Park Car Park at Stansted, CM24 1PY on the XXXXXX.

For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

POPLA Ref: xxxxxxx

MET PCN Ref: xxxxxxxxx

VRN: xxxxxxxxxx

1.  A compliant Notice to Keeper was never served - no Keeper Liability can apply
2. Appellant not being the individual liable

3. Insufficient evidence of the alleged contravention
4. The site boundary is not clear
5.  Lack of standing / authority from landowner
6. Non-Compliant Signage

 

1.     MET Parking Services 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.

 

The 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.

 

The NTK was issued 19 days after specified period of parking ended and received 23 days after the specified period of parking ended.

 

As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in POFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly, I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

VolksSaver

2) Appellant not being the individual liable

MET has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103). 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. Any person(s), with the consent of the registered keeper, may drive a vehicle as long as the driver is insured.

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 the Registered Keeper), 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 MET 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 MET, 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."

VolksSaver

3) Insufficient evidence of the alleged contravention
The evidence provided by MET Parking Services for the alleged breach of terms and conditions stated as left the premises are still photos. There is also no evidence that the supposed boundaries are shown on any signs or on a prominent map that individuals can see while on site in order for them to make a reasonable decision as to what then might be considered 'off site'.
Even if a sign says a charge can be issued for 'leaving the site', this means nothing if 'the site' is not defined. This could include any number of shops, a cash point, toilets, cafe, drop-off areas, delivery area, the car park itself, rest area/benches and any other section of a retail park.
The fact that these photographs appear to overstep the mark of data protection - intruding on personal privacy of patrons without their authorisation - is another matter that POPLA may wish to raise with the BPA and the Information Commissioner, given the current GDPR legislation.

4) The site boundary is not clear.
The notice to keeper states that the reason for issuing the charge notice is: “Vehicle left in Southgate Park car park without payment made for parking and occupants left the Southgate Park premises.”

Nowhere on the signage does it state:

- What the site boundary is.
- Show any map of where site boundary begins and ends.
- That leaving the site fails to comply with terms and conditions.

I require evidence from MET Parking Services to show a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left.
There are no legible markings distinguishing the boundary of Southgate Park. There is one entrance to the site by vehicle. How does one know that one has left the site? McDonald’s address (for the building in this area) is Southgate Stansted Airport, Southgate Rd, Bishop's Stortford CM24 1PY and Starbuck’s address is London Stansted Airport, Southgate Rd, Bishop's Stortford CM24 1PY, so any reasonable person would see that the parking area around McDonald’s building is Southgate Park.
In addition, McDonald’s offers a drive through service and the entry point into this would presumably (since there is not any boundary marking) be from Southgate Park.
There is only one entrance to the Southgate Park site. Leaving the site, to a reasonable person, would mean to leave the vehicle within this boundary and go to a place outside the boundary. A reasonable person would understand that this condition would be in place to stop people parking and possibly going to the airport. There is not any clearly defined boundary to show that one part of a car park is different to another part of the car park.

VolksSaver

5) 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:

Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

Section 7.21 states:

“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.”

Section 7.3 states:

“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”

 

I do not believe that MET’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' the landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay MET (not that a keeper can be liable anyway on non-relevant land and MET cannot enforce byelaws themselves). MET have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that MET are entitled to pursue these charges in their own right.

In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put MET to strict proof of compliance with all of the above requirements

6.     Non-Compliant Signage - 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 £100, which is illegible in from the a driver’s view at the site entrance, and is not visible from any parking spaces - 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, 2015.

 

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:

 

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:

 

 

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, similar in appearance to un-related parking signage, 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 signs with the full terms displayed - i.e. with the sum of the parking charge itself in large lettering, and the full terms displayed on a single sign, - neither at the entrance nor elsewhere, 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 02/06/2016, 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 the terms appear to be displayed inadequately, in letters that are approximately half an inch high or .40 font size by this guide:

 

I put the operator to strict proof as to the size and font of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself, and to prove the location and number of signs required to be read to fully read the full terms of parking.

 

As further evidence that this is inadequate notice, Letter Height Visibility is discussed 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.''

 

''... Letter Visibility Chart shows the maximum reading distance for your sign to make the best impact, as well as the overall readable distance. A good rule of thumb is every 1 inch of letter height provides 10 feet of readability with the best impact. For example, 3” tall letters make the best impact within 30’; however, they can still be seen and read from up to 100’ away''

 

“… The font type that you choose can also impact the visibility of your text. Very thin fonts and script fonts can potentially decrease visibility. When choosing fonts, you should select a bold style that is easy to read and with sufficient spacing between letters (kerning).

 

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:

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.

 

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

 

Yours faithfully,

Coupon-mad

Very good!

Have you also added this to the sticky thread at the top, called POPLA Decisions?

VolksSaver

Hi @Coupon-mad,

Really struggling to see how/where I do this.
Apologies, this is my very first post.

Coupon-mad

Click top (or bottom) of this page on the 'breadcrumb trail' link that takes you back to page one of the parking tickets board.

The sticky threads are those at the top of today's threads.  POPLA DECISIONS is one of them.

See my signature below for what the top of the page breadcrumb trail link looks like (it is tiny writing).

B789

If you post the POPLA decision on the thread mentioned above by CM, we can then see which point or points POPLA decided were in your favour.

POPLA Decisions

jcbackhouse

VolksSaver said:

Dear Money Saving Experts,

Just thought I would say a massive thank you and also share the appeal I submitted to POPLA against MET Parking which resulted in MET withdrawing the PCN.
I hope it will help someone else who may also fall victim to these "so and so's".

thanks for this - we have just been notified by POPLA that MET parking have withdrawn the PCN issued against us for the same car park and similare circumstances ("leaving the car park" to go to McDonalds). We used most of the info from your appeal and adjusted to fit our situation. The NTK was issued outside the 14 days so I suspect that is what lead them to withdraw as the keeper was not the driver. 
its takes some time and patience to fight these guys but its worth it in the end ! 

Umkomaas

We used most of the info from your appeal and adjusted to fit our situation.

Well done. The forum is an absolute mammoth resource for those prepared to seek it out, so super work on your part. Most don't/won't bother, which is why the tiny number of regular contributors are most days overwhelmed in regurgitating the same stuff, day after day, week after week, ad nauseam!

M0neySpending3xpert

Same here. Did the standard appeal to MET parking, got a standard rejection. Used the POPLA code and the arguments set out by VolksSaver, just slightly adjusted for my circumstances, and received an email 10 days later stating MET had withdrawn. Similarly, the NTK was issued late and I did not accept that I was the driver. Thank you for such a valuable resource. The whole car park thing here such a sneaky con! I particularly liked Joe Lycett's YouTube on it!

The operator has contacted us and told us that they have withdrawn your appeal.

If you have already paid your parking charge, this is the reason your appeal will have been withdrawn. Unfortunately, you cannot pay your parking charge and appeal, which means that POPLA’s involvement in your appeal has ended. You will not be able to request a refund of the amount paid in order to resubmit your appeal to us.

If you have not paid your parking charge, the operator has reviewed your appeal and chosen to cancel the parking charge. As the operator has withdrawn your appeal, POPLA’s involvement has now ended and you do not need to take any further action.