14 day limit

idney62

Hi 
My draft for POPLA appeal....

Thank you for your help and comments thus far.  I hope that I have understood the differences between the main points and how they can be applied to my case.  I will attend to formatting etc once I have nailed down the content.  I also need to do intro and close.

The photo inserts haven't copied across - I hope it makes sense without at the moment!

(having trouble posting due to "links" - however scouring doc as I can't find what links are stopping upload. Hopefully this first part will post.  The rest is more standard and uses the well used templates - although not sure how appropriately!

Britannia Parking has issued a Parking Charge Notice (PCN) for a “the following breach in the car park terms and conditions : Parked /stopped in a no parking area.”

The PCN then continues to describe the area as a car park within the text of the Notice to Keeper (NtK).

“The signage displayed at the entrance to the car park.....”

“Motorists who chose to park their vehicle in the car park....”

The NtK photo evidence (first photo) shows the vehicle facing forward to enter the road turning in from a junction and then approaching a give way junction (photo 2). It is not clear from the photo that this is indeed the same junction. No photographic evidence is produced of the vehicle being parked.

On approach to the Junction (pictured in the evidence photo )the sign below is displayed.

(photo of the sign earlier in this post - showing No Parking)

It is not possible to offer a contract, (and subsequently assert breach of a contract) for parking in a NO PARKING area.

In actual fact the location is not a car park and there are no parking facilities offered by Britannia Parking.

The signage placed near the entry point to the access road (but not clearly visible nor easy to read when approaching from a 30mph road whilst trying to keep eyes on road to avoid pedestrians crossing at the traffic island) forbids parking.

As there is a no parking area, then there was no parking contract on offer, so it failed the contractual basic test of NO OFFER, NO CONSIDERATION = NO CONTRACT. This is supported by the recent POPLA appeal decision from assessor Richard Beaden.

“Assessor summary of operator case

The operator has issued a Parking Charge Notice (PCN) as the vehicle was parked in a no parking area.

Assessor supporting rational for decision

When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park.

I am allowing this appeal I will explain my reasons below.

The appellant challenges that a valid parking contract was formed. The signs on site advise that this location is a no parking area and there is no option for a motorist to park in this location. The operator can issue a parking charge notice for trespass but this is not what has happened.

The operator has referred to the site as a car park and has advised the PCN advises that the driver was parked in breach of the terms and conditions but there were no parking facilities which the driver could have used. The PCN makes no mention of trespass and the driver would not have to form a contact to have been trespassing. The operator has issued the PCN as though the driver had breached the terms and conditions but the operator should have treated this as a case of trespass. As such I must conclude that the PCN has not been correctly issued and on this basis I am allowing the appeal.”

The entrance signs are inadequately positioned and lit and signs in this road and are not prominent, clear or legible from all of the road and there is insufficient notice of the sum of the parking charge itself

Signage

There is a “No Parking” sign at the entry to the road, which gives limited information. Further subsequent investigation (on foot) reveals that “Terms and Conditions apply”. Britannia Parking have also stated, in their rejection of my appeal to them, that this area is also a NO STOPPING area, however this is not communicated to drivers with clear signage to this effect.

“As this is a no stopping or parking area there is no minimum requirement for a Consideration

Period as the vehicle should not be stopping at any point within the area.”

There is a sign may which contain more details regarding the terms and conditions shown in the image below, taken whilst walking down the road. The terms (assuming that is what the white lines at the bottom of the sign is) are illegible. The bottom photo shows the location of the sign containing further details.  Being set at 90 degrees to the driver's front view, in the glare of the light and in a busy street scene, the sign itself is barely noticeable, -the dark blue background not standing out in the darkness. It would be impossible for a driver to make themselves aware of the terms and conditions applicable to the area, particularly if stopping is forbidden.

idney62

Part 2  - using NOTEPAD

Figure 1, 2 and Figure 3 clearly show that Britannia Parking signage does not comply with the BPA Code of Practice (18.3), specifically: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

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 'Parking Eye Ltd v Beavis' case. In the Beavis case which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. Figure 1 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case

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 sparsely placed. 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 entering the area, whilst driving. Britannia Parking’s main car park sign on the entry to the Station Access Road as it fails to provide the necessary detail of the terms and conditions.

he BPA Code of Practice(18.1) clearly states that: “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.” Bearing this paragraph in mind, there was categorically no contract established between the driver and Britannia Parking. 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. When the driver at the access road, it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs to the area is poorly located (too high, on the passenger side of the vehicle, not clearly visible from drivers side), not clear after dark (not well lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle entering the road from a 30MPH road),and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge

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, Parking Eye Ltd. has the right to 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 specified period of parking ended on 24/10/2024. The relevant period is therefore the 14 day period from 25.10.2024-7.11.2024 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 12/11/2024 (i.e. outside of the relevant period).

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, Britannia Parking has the right to 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 

 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, Britannia Parking 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.

Britannia Parking 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 Britannia Parking does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Britannia Parking 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:

1. 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

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 versus attempting to read the terms and conditions before deciding against parking/entering into a contract. 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;”

The NtK separately states that the vehicle “entered Bromley Police Station Access Road at 24/10/2024 at 20:02:31 and departed at 24/10/2024 at 20:16:04. At no stage does Britannia Parking explicitly specify the“period of parking to which the charge notice relates, as required by PoFA 2012.

Britannia Parking NtK states “we are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay”. It is not in the gift of Britannia Parking terms 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. I require Britannia Parking to provide evidence to show the vehicle in question was parked on the date/time(for the duration claimed)and at the location stated in the Ntk.

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 close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” (which is also not identifiable in the photos as of any particular location at all). The time and date detail have been inserted into the letter but not part of the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Britannia Parking to produce evidence of the original "un-cropped" 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.

The ANPR System is Neither Reliable nor Accurate.

The Britannia Parking Notice to Keeper (NtK) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with named location on the NtK.

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.

I require ECP 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.

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 he operator is using this technology and what it will use the data captured by ANPR cameras for. Britannia 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.

It is not possible to determine from the miniscule wording on the unlit sign whether the vital information that these camera images would be used in order to issue Parking Charge Notices or. whether the cameras are in any way related to Parking Charge Notices.

Coupon-mad

I don't really do POPLA but hopefully someone might have time to look.

idney62

Is this too long?

1505grandad

Very quick scroll through so not sure you are using/quoting the correct CoP. 

Also ECP stood out  -  have you checked any c & p is relevant to your case.

idney62

1505grandad said:

Very quick scroll through so not sure you are using/quoting the correct CoP. 

Also ECP stood out  -  have you checked any c & p is relevant to your case.

Thank you for taking the time to read and reply.   

Thank you for pick up re ECP - it is a long document with some cutting and pasting!! It was late yesterday.  I have further reviewed and removed references to other operators!

The CoP references have been taken from templates in the NEWBIES section although I  am still a litt;e confused about the POFA compliance for the NTK - and whether I can use all or part of this.

Can I ask what "C&P" means please?

I am continuing to proof read and tinker but would be grateful for any guidance as to whether to main elements/ paragraphs make sense.  Mostly copied from template documents with some editing to update for specific case.
Thanks again

Coupon-mad

Copy & paste

Grizebeck

Sorry but that's a waste of time if you intimated you were driving. The rest is just generic waffle.

Coupon-mad

But it might see them not contest over Xmas. Doesn't matter if you lose,

idney62

Grizebeck said:

Sorry but that's a waste of time if you intimated you were driving. The rest is just generic waffle.

What- all of it? What about the part about no contract possible in a no parking area?