C.U.P enforcement POPLA appeal draft...CUP withdrew

BagpussRules

Received the below NTK PCN and appealed to C.U.P enforcement online on 8th December 2023.
So far have received no response from the appeal with the exception of the email acknowledgement so unable to file with POPLA...what do I do in this instance?  

Fruitcake

From memory, BPA give their members 35 days to respond. Give them a week past that date. If they still haven't replied, complain and give them a week to respond. If they fail again, then complain to the BPA.

The NTK is not PoFA compliant so I hope the driver's identity has not been given to the PPC.

BagpussRules

Fruitcake said:

From memory, BPA give their members 35 days to respond. Give them a week past that date. If they still haven't replied, complain and give them a week to respond. If they fail again, then complain to the BPA.

The NTK is not PoFA compliant so I hope the driver's identity has not been given to the PPC.

Thank you.
I used the Newbies template for the appeal and driver most def not identified😁

BagpussRules

Could someone please cast an eye over the below POPLA appeal and advise if I should add or subtract anything please:

Dear Sir/Madam

As the registered keeper, this is my appeal about a Parking Charge Notice issued by C.U.P enforcement for alleged contravention of Vehicle Registration XXXXXXX parking within a restricted area at 70-72 High Street, Aveley RM154BX on 21st September 2023. 

The PCN from C.U.P enforcement has only shown the time the vehicle left the location and there is no evidence of when the vehicle reportedly entered the location and if it did in fact ‘park’.

The appeal to C.U.P enforcement was sent on 08/12/23 was subsequently rejected by them in a letter dated 10/01/24.

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

POPLA Ref: XXXXXXXXXXX

C.U.P enforcement PCN Ref: XXXX

On the 5th December 2023, C.U.P enforcement issued a parking charge notice highlighting that the above mentioned vehicle had parked within a restricted area on 21st September 2023.

As the registered keeper I wish to refute these charges on the following grounds:
1) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)
2) The operator failure to adhere to the British Parking Associations (BPA) Code of Practice Grace’ Periods
3) C.U.P enforcement lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
4) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

1) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)

To support this claim further the following areas of dispute are raised:

·        The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

·        The Notice to Keeper does not warn the keeper that, if after a period of 28 days, C.U.P enforcement has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012

The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the supposed contravention happened on 21st September 2023. The relevant period is therefore the 14 day period from 22nd September 2023 to 6th October 2023 inclusive. Sub-paragraph 9 (6) states that 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 “Letter Date” stated on the PCN is 5th December 2023 in accordance with sub-paragraph 9 (6) is presumed to have been “given” on 6th December 2023 (i.e. outside of the relevant period).

BagpussRules

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, C.U.P enforcement has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that 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 sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:

The notice must be given by—
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Upon reviewing the NTK, C.U.P enforcement have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

2) Failure to adhere to the British Parking Associations (BPA) Code of Practice ‘Grace’ Periods

The BPA Code of Practice clearly highlights within section 13 that a company’s approach to parking management must allow a vehicle “…a reasonable period without having their vehicle issues with a parking charge notice.” Subsections 13.2 and 13.4 offer further clarification stating that

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still
allow them a grace period to read your signs and leave before you take enforcement action.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

Upon receiving the Parking Charge, the document described the vehicle as merely leaving the car park at 16:50 on the 21st September 2023 there is no mention of the time the vehicle entered the restricted area, I would suggest that the vehicle pulled into the restricted area turned around and left without the driver stopping or even exiting the vehicle. The BPA sets a minimum of 10 minutes just to leave, not a maximum grace period. As Kelvin Reynolds of the BPA quoted in the news article ‘Good car parking practice includes ‘grace’ period’: “…there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.” To briefly summaries his definition, an observational period must include sufficient time for a motorist to park, observe the signs, make a decision as to whether they wish to comply with the conditions and pay.

It is clear from the lack of evidence that C.U.P enforcement have failed to uphold and consider the necessary grace periods set out in the BPA Code of Practice, as the total time within the restricted area does not allow for the driver to make the necessary observations, as highlighted by Kelvin Reynolds above, nor allow the necessary grace period for leaving the car park.

3) C.U.P enforcement lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that C.U.P enforcement does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that C.U.P enforcement be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

The BPA Code of Practice clearly states that:!

18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.

Baring this paragraph in mind, there was categorically no contract established between the driver and C.U.P enforcement. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible with only an ANPR sign on a lamp post and nothing further at the entrance.

 

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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:

BagpussRules

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 and poorly placed – particularly to a driver entering the site – with no lighting. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

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 the majority 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 operator’s 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 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 an example of a binding case law from the Court of Appeal offers further supports my argument:

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.

Based on these points, it is believed that C.U.P enforcement are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that C.U.P enforcement be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.

In summary, these points demonstrate the claim by C.U.P enforcement is invalid and should the claim continue, further action and evidence requested in this appeal is required from C.U.P enforcement

BagpussRules

This was the CUP reply to the appeal.  They state they were within their right to issue a Non-PoFA notice within 7 months pf contravention.

Coupon-mad

Which they were.

But as a consequence. they can't use it to win at POPLA if the keeper is the appellant!

You'll win as long as nothing you put (too long for me to read!) implies who was driving.

This date is wrong:

The “Letter Date” stated on the PCN is 5th December 2023 in accordance with sub-paragraph 9 (6) is presumed to have been “given” on 6th December 2023 (i.e. outside of the relevant period).

BagpussRules

Coupon-mad said:

Which they were.

But as a consequence. they can't use it to win at POPLA if the keeper is the appellant!

You'll win as long as nothing you put (too long for me to read!) implies who was driving.

This date is wrong:

The “Letter Date” stated on the PCN is 5th December 2023 in accordance with sub-paragraph 9 (6) is presumed to have been “given” on 6th December 2023 (i.e. outside of the relevant period).

Thank you.  I have amended the date to the second working day after issue.
Definitely have not implied who the driver was.

1505grandad

A heads-up  -  you should be using/quoting BPA CoP version 8 dated January 2020  -  i.e. para 13 (Grace period etc) is different wording.

BagpussRules

1505grandad said:

A heads-up  -  you should be using/quoting BPA CoP version 8 dated January 2020  -  i.e. para 13 (Grace period etc) is different wording.

Thank you.  I have removed and replaced with 13.1 from version 8.