Horizon PCN - new template

Gr1pr

As above, dont look at any Popla cases before 2020 , its better if you stick to any within the last 2 years , especially those that won, typical points to make are 

No landowner authority 
NTK PCN letter does not comply with POFA 2012
Driver not identified 
No keeper liability 
Liability has not been transferred from the driver to the keeper 
Poor and inadequate signage 
Any BPA CoP failures 
Etc

Use anything that is relevant, discard those that are not relevant, but ALWAYS include points on signage and no landowner authority, regardless, so mainly a pick and mix

Ineedhelp101

POPLA reference number xxxxxxxxxxxxx

Horizon Parking PCN no xxxxxxxxxxx

 

As the registered keeper, this is an appeal against the Parking Charge Notice issued by Horizon Parking for an alleged breach of the company's terms and conditions in ASDA Barking car park, on 8th June 2024, with stated duration of stay 3 hours and 30 minutes.

 

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

 

Summary of appeal:

1. Non-compliance with PoFA 2012

2. No evidence of ownership or legal basis to form contracts to charge for parking

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

 

 

1. Non-compliance with PoFA 2012

The PCN sent to me by Horizon Parking was delivered by post using ANPR and a subsequent request to the DVLA for Registered Keeper details. No notice was given at the time of the alleged contravention. As such, the notice should conform to Schedule 4 of the Protection of Freedoms Act 2012. I would draw particular notice to paragraph 9 (2 (f))

 

“(2)The notice must—

 

  (f) 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;”

 

The notice from Horizon Parking does not meet this requirement by stating what action will be applicable if the creditor does not know the name and address of the driver: it only claims that Horizon "have the right to recover the outstanding charge from the driver". If the driver cannot be identified, Horizon have no authority to pursue the keeper since the conditions of PoFA 2012 have not been met.

 

The notice also does not state the period of parking in the car park. The time that a vehicle is in the car park between the time of the entry and exit photographs will rarely correlate with a time period of being parked. It is entirely feasible that a driver may spend significant time loading/unloading, helping with assisted boarding/alighting and/or locating a parking space.

2. No evidence of ownership or legal basis to form contracts to charge for parking

2) 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

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 - where neither of the two signs a motorist entering via the rear entrance and leaving via the main exit would see mention the parking charge at all - 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>

 

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>

 

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:

 

<link>

 

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

 

<link>

 

''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>

 

''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:

 

<link>

 

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.

 

In light of these points, I request POPLA to uphold my appeal and cancel this PCN.

 

Sincerely,

<name>

Thank you for all the help guys! 3rd time lucky?

Coupon-mad

I'd remove this as it has no legs:

The notice also does not state the period of parking in the car park. The time that a vehicle is in the car park between the time of the entry and exit photographs will rarely correlate with a time period of being parked. It is entirely feasible that a driver may spend significant time loading/unloading, helping with assisted boarding/alighting and/or locating a parking space.

And more importantly, you need to explain EXACTLY why that NTK is non-PoFA because it is trying to say it is a PoFA one.  POPLA won't spot the problem in the wording unless you walk them through it.

You've got to spell it out about the 28 day period.  The way to do that well, is read the Premier Park POPLA Appeals from a couple of years ago in POPLA DECISIONS because Premier Park had the same error about the 28 days.

What you need to do is mirror a POPLA Assessor's exact words from a POPLA Decision that went against Premier Park about the misstatement re the 28 day period and 'driver details'.

It'll make sense when you read one!

Ineedhelp101

Coupon-mad said:

I'd remove this as it has no legs:

The notice also does not state the period of parking in the car park. The time that a vehicle is in the car park between the time of the entry and exit photographs will rarely correlate with a time period of being parked. It is entirely feasible that a driver may spend significant time loading/unloading, helping with assisted boarding/alighting and/or locating a parking space.

And more importantly, you need to explain EXACTLY why that NTK is non-PoFA because it is trying to say it is a PoFA one.  POPLA won't spot the problem in the wording unless you walk them through it.

You've got to spell it out about the 28 day period.  The way to do that well, is read the Premier Park POPLA Appeals from a couple of years ago in POPLA DECISIONS because Premier Park had the same error about the 28 days.

What you need to do is mirror a POPLA Assessor's exact words from a POPLA Decision that went against Premier Park about the misstatement re the 28 day period and 'driver details'.

It'll make sense when you read one!

How is this:

In order to rely upon POFA to hold a vehicle's keeper liable for unpaid parking charges, an operator must deliver a notice to keeper in full compliance with all of POFA’s strict requirements. I set out below a non-exhaustive list of reasons why Horizon Parking did not comply.

Non-compliance with Paragraph 9 (2) (f)

This Paragraph requires that the notice must warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given:

(i) the amount of the unpaid parking charges (as specified under paragraph © or (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

• The notice to keeper is dated 13th June 2024

• 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.

• If the notice to keeper had been posted on Thursday 13th June 2024 (which Horizon Parking has not proven) it would be deemed to have been given on Monday 17th June 2024.

• The period of 28 days beginning with the day after that on which the notice to keeper is given would therefore cover the period from Tuesday 18th June 2024 – Tuesday 16th July 2024 inclusive.

• According to Paragraph 8 (2) (f), Tuesday 17th July 2024 would be the first day after this period of 28 days i.e. the first day that the right to recover payment from the keeper existed.

The PCN issued states “if after 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.”

This is not consistent with the requirements of Paragraph 8 (2) (f) of Schedule 4 of POFA as demonstrated below:

• The notice to keeper is dated 13th June 2024

• Even if it is assumed that the notice was posted on 13th June 2024 and even if the date of posting is not counted, this 29 day period referred to in Horizon Parking’s notice to keeper would cover the period from Tuesday 18th June 2024 – Tuesday 16th July 2024 inclusive.

• According to Horizon Parking, Wednesday 17th July 2024 would be the first day when it would have the the right to recover payment from the keeper

Thus Premier is seeking to claim keeper liability 22 days too soon.

I draw POPLA’s attention to the reverse of the notice to keeper in which Premier states that if you would like us to review this Parking Charge within 28 days of receiving this letter please “provide the full name and address of the driver/keeper at the time online”

With regard to establishing keeper liability, if Horizon Parking had intended to claim that it had the right to recover unpaid parking charges from the keeper if payment had not been made or the driver’s details not been provided within 28 days of receiving this letter, the notice to keeper would have explicitly said so. However, the notice to keeper did not and POPLA has no right to interpret Horizon Parking statement "if within 28 days" as meaning that this must apply from the date of service rather than the date of posting.

Non-compliance with Paragraph 9 (2) (i)

This Paragraph requires that the notice must specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

Horizon Parkings notice to keeper merely states a “Notice of Issue Date” of 13 June 2024 which may or may not have been the date that the notice was actually sent or given. Therefore the notice to keeper fails to specify the date on which it was sent or given.

As a consequence of its failure to comply with POFA, Horizon Parking has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the vehicle’s keeper and for this reason alone, POPLA must determine that Horizon Parking claim is invalid.

Should Horizon Parking try to suggest that there is any other method whereby a vehicle’s keeper can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

https: //popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“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.......

.......... However keeper information is obtained, 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”.

Coupon-mad

No. Far too complicated.

Mirror the far more concise words of a POPLA Assessor (NOT A POPLA APPEAL) in a similar Premier Park case.  You want to spout POPLA's own words at them.

1505grandad

As it is an ANPR NTK para 8 (relating to windscreen pcn) of POFA 2012 is not relevant?

Doherty6650

Coupon-mad said:

No. Far too complicated.

Mirror the far more concise words of a POPLA Assessor (NOT A POPLA APPEAL) in a similar Premier Park case.  You want to spout POPLA's own words at them.

Hi Coupon Mad. I am new to this forum. I have read as much as I can.

I have a very similar situation to OP. I too have a Non POFA compliant NtK from Horizon. I appealed it. Then rejected it but gave me a POPLA reference. I am just drafting my POPLA appeal now.

Would you be so kind to help me out with the wording of an appeal arguing the my NtK is not POFA compliant. I have read through the NEWBIES guide extensively. I have looked at the thread of all your examples of non compliant NtK's. I am sure mine is no good. 

I searched the forum for the Premier park cases you mentioned in the POPLA decisions thread and cant seem to find them. Even if you could just provide me with a link to the cases you mentioned so I can see the wording of the POPLA assessor in the premier park cases. I have drafted every section of my appeal apart from this so far. 

thanks so much

Le_Kirk

If you need help above and beyond that which is always available in the NEWBIE sticky third post (POPLA), then please start your own thread with details pertaining to your situation.  Not easy to deal with more than one case on the same thread as it becomes confusing.

Coupon-mad

You both just need to search the forum for a combination of words like:

POPLA Assessor Premier 28 days driver details POFA

or less words than that, using some of the above. ONLY look for a post in your search results that sits in POPLA DECISIONS.

Ineedhelp101

Coupon-mad said:

No. Far too complicated.

Mirror the far more concise words of a POPLA Assessor (NOT A POPLA APPEAL) in a similar Premier Park case.  You want to spout POPLA's own words at them.

Hmmn okay what about this:

This operator fails the Schedule 4 wording on the same basis that another recent (same wording) Premier Park 'Notice to Keeper' was found as non-compliant by Ombudsman POPLA Assessor Timothy Jessop (and other Assessors since) so for consistency, I point out this decision from a few years ago which is in the public domain:

https://forums.moneysavingexpert.com/discussion/comment/70454598#Comment_70454598

As the appellant has not been identified as the driver I must ensure this PCN has met the requirements of PoFA.

Schedule 4, Paragraph 9 of PoFA states the PCN must (9f) 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;”

The PCN issued to the appellant states “If within 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle.“ 

In this case I do not consider or that the operator has fully met the requirements of PoFA as by informing the appellent it can seek to recover payment after 28 days, it has failed to meet section (9f) as this 28 day period will not begin until the day after the notice is given. The day after the notice is given cannot be determined as Horizon Parking have not recorded the date the PCN was received in the post to the keeper. As such, we cannot conclude that the PCN has been issued correctly.