Parkmaven PCN Appeals help

Coupon-mad

Yes - those two!

Doingmybest2015

Thanks do I go and get pictures to include in my appeal of the parking signs?

Umkomaas

Doingmybest2015 said:

Thanks do I go and get pictures to include in my appeal of the parking signs?

If they are to your advantage. Make sure that if attaching photos, the date and time are superimposed on them - POPLA will disregard them as contemporaneous evidence if not. There an app (name escapes me) that will do the job for you. 

Doingmybest2015

Here is my updated version, I have taken photos from the angle when sat in the car. Just need to decide whether to include or not.

On DD/MM/2023 I received a PCN Notice to Hirer. My appeal to the operator – ParkMaven Ltd – was rejected on DD/MM/2023. As the hirer of the vehicle I 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 Notice to Hirer failed to meet the obligations of Schedule 4 of the Protection of Freedoms Act (POFA) 2012

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 British Parking Association (BPA) Code of Practice

 

1) Notice to Hirer failed to meet the obligations of Schedule 4 of the POFA Act 2012 as stated in paragraph 14, sub-paragraph 2 and 3, along with paragraph 13 sub-paragraph 2. 

 The parking operator must meet the conditions of Schedule 4 of POFA in order for them to be able to invoke keeper liability for a Parking Charge. This involves providing a Notice to Hirer, along with a Notice to Keeper as well as:

a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

b) a copy of the hire agreement; and

c) a copy of a statement of liability signed by the hirer under that hire agreement.

 

These documents have not been supplied to me at all or within the ‘relevant period’ of 21 days beginning on the day after that on which the documents required by 13 (2) are given to the creditor - as per POFA.

 

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle's hirer. For this reason alone, POPLA may determine that the Operator's claim against me is invalid.

Doingmybest2015

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 I (as an individual) 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.

Doingmybest2015

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

 Within the POFA 2012 Schedule 4 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 defines 'adequate notice' in paragraph 2 sub-paragraph 3 as follows:

 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 the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size, 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: 

 

 

 

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 to sign 

 

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 do not immediately become 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.

 

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: http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

 

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

 

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

 

'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.

 

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a 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: http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

 

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.

 

Additionally I would argue that the signs are disability friendly as they use multiple colour backgrounds and don’t avoid green which are difficult for those who have colour vision deficiencies. 

 

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 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.

 

 

Doingmybest2015

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

 

 

Based on all the points laid out above, I appeal to POPLA to rule that this parking charge is invalid.

Doingmybest2015

This is one of the signs. Can you see where the charge is when sat in the car??

Coupon-mad

No it's illegible.

But you will win anyway - that's a good example of a NTH POPLA appeal.

Doingmybest2015

Thank you - all submitted. Didn't expect that format from POPLA website as it made you select the grounds for appeal but covered the best I could and uploaded a full version of the above.

Just a random thought - can they argue they did send the NTH documentation? They certainly didn't but it feels like my word against theirs.