Britannia Parking POPLA Appeal stage - advice please

purplefizz27

Hello,

Thank you all for your great advice, I have read the newbies posts and FAQs and have managed to 'Frankenstein' an appeal letter of my own. 

Car park in question: Hyde - The Mottram Wood, Dawlish Close, SK143AU
My original appeal was unfortunately written before I found this helpful forum, but for ref I specified that I was not the driver, merely the keeper of the vehicle in question. If it's important, my initial appeal to Britannia Parking centred around not seeing any obvious signage so being unaware it was private land, and also being in a fluster due to needing to clean up my poorly toddler at the time (we are not local to the area and still had over an hour to get home so needed to pull over somewhere safely off the motorway, we went through a McDonalds Drive through and then pulled into the car park next to it to attend to my ill toddler)

I have tried to share my draft but the new thread would not post on here - apparently "Body is 5768 characters too long."

I have used multiple examples from previous threads, and now cannot find the originals to ref whether the advice/ quotes used are still relevant or now too old?

Any critique and help or advice is very much appreciated, thank you so much in advance!

Hoping I can share the draft in the comments below...

purplefizz27

Dear Sir or Madam,

I, the registered keeper of this vehicle [REG NO], received a letter on Xth September 2024 acting as a notice to the registered keeper for Parking Charge Notice [NUMBER]. 

My appeal to the operator – Britannia Parking – was submitted and acknowledged the same day on Xth September 2024 but subsequently rejected by an email dated Xth October 2024. 

I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. There was insufficient signage
2. The notice to keeper is incorrect 
3. Britannia Parking have not shown that the individual (me) who they are pursuing is in fact liable for the charge
4. The charge is disproportionate and not commercially justifiable
5. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements 
6. Vehicle Images contained in PCN: BPA Code of Practice–non-compliance
7. The ANPR System is Neither Reliable nor Accurate
8. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

1. There was insufficient signage

We are not local, and from memory of the day in question we cannot remember seeing any clear signage to explain what the relevant parking restrictions are. The signs in this car park were not prominent, clear, or legible from all parking spaces, and there is insufficient notice of the sum of the parking charge itself - I have received photos provided by Britannia Parking of some signage that is apparently in the car park in question, but it is not obvious where the images are taken from - and one sign is surrounded by the leaves of a shrub/ tree so appears obscured and not clearly visible. 

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 apparent signage in place at the location. Having considered the photos provided of 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 font size of the £100 sum, which is only just legible in the one photograph provided by Britannia Parkjng and does not appear at all in the photo of the large entrance sign (and also does not feature on the other photographs of the signs provided) - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist. 

The signage was not obvious and the wording appears crowded and cluttered. 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.

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. 

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 as shown in the photo provided by Britannia Parking, showing the terms and the 'charge' in small and overcrowded print, and placed high on a pole, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a pole, as the angle renders the words less readable due to the perspective and height, you would have to stand still right in front of it 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. 

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 better 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.

It would be useful if Britannia Parking could provide 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, 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 signage terms will not be sufficient to disprove this.

This exact finding was made 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.’’

2. The notice to keeper is incorrect

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. 

Britannia 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.’’

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 myself arrived 15 days after the alleged offence (beginning with the day after that on which the specified period of parking ended)

3. Britannia Parking have not shown that the individual (me) who they are pursuing is in fact liable for the charge

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. I am the keeper 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, a 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.”

4. The charge is disproportionate and not commercially justifiable

The amount Britannia Parking have charged is not based upon any commercially justifiable loss to the company or the landowner.

In my case, the £100 charge far exceeds the cost to the landowner in an otherwise free car park. According to the parking charge notice, we were in the car park for a total of 38 mins. If we take the 10 minute grace period into consideration, the £100 charge would therefore equal to parking for £3.50 a minute. I would like to also point out that at the time we were in the car park, it was not even close to being a quarter full. 

5. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements 

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked. Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: “specify the vehicle, the relevant land on which it was parked, and the period of parking to which the notice relates;”. Britannia Parking’s NtK simply claims “Location: ‘Hyde - The Mottram Wood, Dawlish Close, SK143AU”. The NtK separately states “entry: 30/08/2024 at 19:18:42” and “exit: 30/08/2024 at 19:56:56”. At no stage do Britannia Parking explicitly specify the“period of parking to which the notice relates”, as required by PoFA 2012. Britannia Parking’s NtK states “The conditions on the signage (parking contract) must be adhered to, or a Parking Charge Notice will be issued”. It is not in the gift of Britannia Parking to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. By virtue of the nature of an ANPR system recording only entry and exit times, Britannia Parking are not able to definitively state the period of parking. It would be helpful if Britannia Parking could provide evidence to show the vehicle in question parked on the date/time (for the duration claimed) at the location stated in the NtK

purplefizz27

6. Vehicle Images contained in PCN: BPA Code of Practice–non-compliance

The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

The PCN in question contains two images of the vehicle. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all). The time and date stamp has been inserted underneath (but not part of) the images. It would be helpful if Britannia Parking could produce evidence of original images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

7. The ANPR System is Neither Reliable nor Accurate

The Britannia Parking Notice to Keeper (NtK) shows no parking time, merely images of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. The Notice to Keeper states: “Location: ‘Hyde - The Mottram Wood, Dawlish Close, SK143AU”. The NtK separately states “entry: 30/08/2024 at 19:18:42” and “exit: 30/08/2024 at 19:56:56”. These times do not equate to any single evidenced period of parking. By Britannia Parking’s own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed. Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states; “Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order. It would be helpful for Britannia Parking to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained, and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to park or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle allegedly entering and leaving the car park at specific times, it is vital that Britannia Parking can produce the evidence requested In the previous paragraph.

8. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras. Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. Britannia Parking’s signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. 

The photographs provided by Britannia Parking of the signs in the car park show one sign stating “This ANPR monitored car ark is operated by The Britannia Parking Group. Car park monitored by ANPR systems”. One image also states “Camera controlled”. Specifically missing is the vital information that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentences above that the cameras are in any way related to Parking Charge Notices. The only reference to Parking Charge Notices on Britannia Parking’s sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states “This car park is regularly patrolled by mobile parking enforcement teams. A parking charge notice of £100 may be issued to vehicles which:…”

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015, including Paragraph 68: ‘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.’ and Paragraph 69: ‘Contract terms that may have different meanings: (1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.’ 

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 because the operator ‘fails to identify its commercial intent’ (link) 

Misleading omissions: 6.-(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph(2)-(a) the commercial practice omits material information

27(b) the commercial practice hides material information, the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or (d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.’’

It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon and “Car park monitored by ANPR systems” suggests CCTV is in operation for security within the car park.

Considering all of the above points, I kindly request that POPLA carefully reviews my appeal. 

Thank you for your time - I look forward to a thorough and impartial review by POPLA.

Coupon-mad

Firstly:  is the NTK POFA or non-POFA?

Don't show us. Compare the front page to the 2 Britannia versions in the NTK pictures thread.

purplefizz27

Hi, it’s POFA (has the extra paragraph)

Coupon-mad

Yet you say:

"The NTK sent to myself arrived 15 days after the alleged offence (beginning with the day after that on which the specified period of parking ended)".

What were those two dates?

purplefizz27

Coupon-mad said:

Yet you say:

"The NTK sent to myself arrived 15 days after the alleged offence (beginning with the day after that on which the specified period of parking ended)".

What were those two dates?

Alleged offence was on 30th August and I received the NTK on 14th Sept. 

Apologies, I’ve just used all the advice and example quotes and just inserted my dates/info, so not sure which parts are relevant or OK to keep in?

Appreciate your help!

Coupon-mad

No, the two actual dates please.  Not when you received it.

purplefizz27

Coupon-mad said:

No, the two actual dates please.  Not when you received it.

On the NTK it says “date of this notice: 5th september 2024” and “date of contravention: 30/08/2024”

Does that make my “The notice to keeper is incorrect” point invalid, even though I only received the NTK on 14th Sept (not within ‘the relevant period’) ?

KeithP

purplefizz27 said:

Coupon-mad said:

No, the two actual dates please.  Not when you received it.

On the NTK it says “date of this notice: 5th september 2024” and “date of contravention: 30/08/2024”

Does that make my “The notice to keeper is incorrect” point invalid, even though I only received the NTK on 14th Sept (not within ‘the relevant period’) ?

The problem you have is that the parking company will say that the Notice was posted on 5th September. 
A notice posted on 5th September is deemed delivered two working days later - 9th September.

Just as the parking company will have no proof of when the Notice was actually posted, you have no proof that is wasn't received on 9th September.

purplefizz27

KeithP said:

purplefizz27 said:

Coupon-mad said:

No, the two actual dates please.  Not when you received it.

On the NTK it says “date of this notice: 5th september 2024” and “date of contravention: 30/08/2024”

Does that make my “The notice to keeper is incorrect” point invalid, even though I only received the NTK on 14th Sept (not within ‘the relevant period’) ?

The problem you have is that the parking company will say that the Notice was posted on 5th September. 
A notice posted on 5th September is deemed delivered two working days later - 9th September.

Just as the parking company will have no proof of when the Notice was actually posted, you have no proof that is wasn't received on 9th September.

Ah ok thank you, so should I delete that point entirely from the draft?

Are the rest of the points valid/ looking ok?