POPLA appeal - MET parking -McDonalds Lakeside(Please help urgently as POPLA window closes today)

Spicygem · 26 June 2024 at 5:49PM

Hello, hope everyone’s enjoying the lovely sunshine!

A few months ago, I received a NTK from MET for overstaying by 27 mins after visiting McDonalds in Lakeside Thurrock. Genuinely didn’t notice the signs, also there was a long waiting time first queuing for drive through, we then changed our mind and went in to eat, afterwards let child play in their soft play area and lost track of time.

The manager at McDonalds was unhelpful, and claimed they were renting the land from MET parking therefore they have nothing to do with the parking charges.

I’ve already appealed to MET using one of the templates here (didn’t give away driver details, non POFA compliant etc), and as expected they’ve refused and sent Popla code. Just realised that I have to submit the popla appeal by EOD today before the 28 days runs out so urgently require some help reviewing my popla appeal before I click send.

Note – I’m pretty sure the MTK is non POFA as it’s exact word for word as the letter here (new user so i'm not allowed to post links yet but please search for the post titled "

McDonalds Gatwick MET Parking Charge - am I doing this right please guys and girls?"

Am I right in thinking the only reason it’s non POFA complaint in the Gatwick case is because this relates to an airport?

Dear POPLA,

On the 31st March 2024, MET Parking Services issued a parking charge to me (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “remaining on site longer than the stay authorised”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

1.The Notice to Keeper does not comply with Protection Of Freedoms Act 2012, schedule 4, paragraph 9, subparagraph 2f, and is therefore not POFA compliant.

2.The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

3. Non-Compliant Signage

4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

Please see below for details

1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to not giving the warning required under schedule 4 paragraph 9 sub-paragraph 2f.

Under schedule 4, paragraph 9 (2f) of the POFA, the notice must 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;

An operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraph 9. MET Parking Services have failed to fulfil these conditions in the NTK issued.

2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

At no point have MET PArking Services provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

3) 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 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.

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 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 the terms appear to be displayed inadequately, in letters that are approximately half an inch high.

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:

(new user so i'm not allowed to post links yet)

“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:

(new user so i'm not allowed to post links yet)

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.

4) 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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).

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

Kind regards

LDast · 26 June 2024 at 6:40PM

The POPLA code is actually valid for 32 days. Ignore the fact that it states 28 days. Are you positive that the NtK is worded precisely the same as the one issued at Gatwick? If you're not 100% sure, show us a picture of the NtK the keeper received suitably redacted but make sure all dates remain visible.

Spicygem · 26 June 2024 at 7:41PM

LDast said:

The POPLA code is actually valid for 32 days. Ignore the fact that it states 28 days. Are you positive that the NtK is worded precisely the same as the one issued at Gatwick? If you're not 100% sure, show us a picture of the NtK the keeper received suitably redacted but make sure all dates remain visible.

Oh that's good to know thank you! Can take my foot of the gas now

Off to figure out how to redact a picture. BRB!

Spicygem · 26 June 2024 at 8:25PM

LDast said:

The POPLA code is actually valid for 32 days. Ignore the fact that it states 28 days. Are you positive that the NtK is worded precisely the same as the one issued at Gatwick? If you're not 100% sure, show us a picture of the NtK the keeper received suitably redacted but make sure all dates remain visible.

I have attached the redacted NTK. Will greatly appreciate your thoughts. Also can i double confirm on the 28/32 days for popla appeal, as it states on their website "You have 28 days to submit your appeal with us from the date the parking operator rejects your appeal. We are unlikely to be able to accept your appeal if you delay beyond these 28 days." Many thanks for your help

Image: https://us-noi.v-cdn.net/6031891/uploads/editor/1d/4vmiesbzm34m.jpg

Image: https://us-noi.v-cdn.net/6031891/uploads/editor/vt/20cavnbfpwyn.jpg

LDast · 26 June 2024 at 8:41PM

It is not up top MET to accept the 28 day deadline. It is up to POPLA. We know from many years experience that a POPLA code will still work after 32 days. There is no point delaying it but it is good to know the deadline is slightly more than you thought you had.

That NtK is definitely not PoFA compliant and therefore only the unknown driver can be liable. The known keeper is under no legal obligation to reveal the identity of the unknown driver. As long as you used the initial appeal from the Newbies/FAQ thread and have not identified the driver, inadvertently or otherwise, you can use the POPLA points you have listed but you will need to expand on them.

On what grounds did they reject your initial appeal?

Spicygem · 26 June 2024 at 9:40PM

LDast said:

It is not up top MET to accept the 28 day deadline. It is up to POPLA. We know from many years experience that a POPLA code will still work after 32 days. There is no point delaying it but it is good to know the deadline is slightly more than you thought you had.

That NtK is definitely not PoFA compliant and therefore only the unknown driver can be liable. The known keeper is under no legal obligation to reveal the identity of the unknown driver. As long as you used the initial appeal from the Newbies/FAQ thread and have not identified the driver, inadvertently or otherwise, you can use the POPLA points you have listed but you will need to expand on them.

On what grounds did they reject your initial appeal?

Thank you again. Good to know that the NTK is not POFA compliant as i initially suspected.

This was their response:

"The terms and conditions of parking are clearly stated on the signs prominently displayed around this site. These include that parking is for customers whilst on the premises only and that there is a maximum permitted stay in this area of 90 minutes. Your vehicle remained on site for longer than the maximum permitted stay therefore we believe the charge was issued correctly and we are upholding it.

A grace period was granted in line with the BPA code of practice and was exceeded.

We are confident there are sufficient signs at this location bringing the terms and conditions of parking to the attention of motorists and it remains the driver's responsibility to check the signs where they park and comply with the terms and conditions. Images of the signs available on the site have been enclosed.

This decision, which has been based on the facts of the case and takes into account our consideration of any mitigating circumstances, is our final decision. You have reached the end of our internal appeals procedure and you now have a number of options:"

As you can see, they did not respond to the non POFA point made.

Do you mind terribly if i please ask how you would suggest i expand on the POPLA points i listed, as i have simply used the same content from recent MET POPLA appeals here. If i can help it, i'd like to put the appeal in today and not push my luck

LDast · 26 June 2024 at 11:02PM

I already did explain it. You will need to use the argument in your POPLA appeal that because the NtK is not fully compliant with the requirements of PoFA, they cannot transfer liability for the charge from the unknown driver to the known keeper, you. You, the known keeper are under no legal obligation to reveal the identity of the unknown driver and will not be doing so as is your right.

So, the burden of proof is on the operator to prove that you, the known keeper were also the unknown driver. Of course, they cannot prove such a thing unless you, the known keeper admits to also being the unknown driver, which I presume you will not be doing so.

Can you see their Catch 22 problem? The POPLA assessor should know that unless they can prove you, the known keeper were also the unknown driver, then the PCN has not been issued correctly.

You just need to make sure that you lead the assessor by the nose to your conclusions. You could get the tea-boy doing the assessments on the day yours get to the top of the pile. Think Janet and John early learning books as a style for explaining your reasoning in your POPLA appeal.

Spicygem · 27 June 2024 at 12:37AM

LDast said:

I already did explain it. You will need to use the argument in your POPLA appeal that because the NtK is not fully compliant with the requirements of PoFA, they cannot transfer liability for the charge from the unknown driver to the known keeper, you. You, the known keeper are under no legal obligation to reveal the identity of the unknown driver and will not be doing so as is your right.

So, the burden of proof is on the operator to prove that you, the known keeper were also the unknown driver. Of course, they cannot prove such a thing unless you, the known keeper admits to also being the unknown driver, which I presume you will not be doing so.

Can you see their Catch 22 problem? The POPLA assessor should know that unless they can prove you, the known keeper were also the unknown driver, then the PCN has not been issued correctly.

You just need to make sure that you lead the assessor by the nose to your conclusions. You could get the tea-boy doing the assessments on the day yours get to the top of the pile. Think Janet and John early learning books as a style for explaining your reasoning in your POPLA appeal.

Got you. Thanks!

On that note, i have rejigged the appeal as per below. Please let me know if this is a better presented argument.

I am the registered keeper of the above vehicle and have received the above demand from Met Parking Services, highlighting that the above-mentioned vehicle had been recorded via their automatic number plate recognition system for “remaining on site longer than the stay authorised”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

1. The Notice to Keeper does not comply with Protection of Freedoms Act 2012, schedule 4, paragraph 9, subparagraph 2f, and is therefore not POFA compliant.

2. The Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates.

3. 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.

4. Non-Compliant Signage.

5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

Please see below for details:

1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to not giving the warning required under schedule 4 paragraph 9 sub-paragraph 2f.

Under schedule 4, paragraph 9 (2f) of the POFA, the notice must 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;

An operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraph 9. MET Parking Services have failed to fulfil these conditions in the NTK issued.

2) The Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Met Parking have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording: -

’’The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. Furthermore,

paragraph 9(5) states:

’’The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to me as Registered Keeper arrived some 19 days after the alleged event. The date that they describe as the ‘Date of issue”’ on the NTK is 16 days after the alleged event. Even if they had posted it on the same day that they describe as the ‘Date of issue”’, it would be impossible for the notice to have been actually delivered and deemed ‘served’ or ‘given’, within the 'relevant period' as required under paragraph 9(4)(b). This means that Met Parking have failed to act in time for keeper liability to apply.

3] The operator has not shown that the individual who it is pursuing is in fact 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. Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), 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 charge cannot be enforced against a keeper without a POFA-compliant NTK. The burden of proof rests with the Operator, 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 – they will fail to show I can be liable because the driver was not me. 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.''No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''

CONTINUED BELOW

Spicygem · 27 June 2024 at 12:38AM

4) 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