Civil Enforcement Ltd CEL POPLA Stage appeal

fuziduck

As always, thanks to the newbie thread to start the appeal process.
I completed the first stage of the appeal in line with the thread and did not identify the driver etc. 
I have now received a response below and have been provided with a POPLA code.

Original Parking Fine:



Response:

From what I have read, and reviewing the NTK, I do not believe the NTK is compliant as it does not include mandatory wording to state the keeper will be held liable after 28 days (even though they do mention this in their response to the first appeal). Therefore they cannot rely on keeper liability. (It was however issued in time, contrary to the below members NTK).
As noted here by tincombe: https://forums.moneysavingexpert.com/discussion/comment/81233962/#Comment_81233962

I am going to appeal to POPLA on the below basis, unless anyone thinks there is anything further to add?

I am writing to appeal the above parking charge notice issued to me by Civil Enforcement Ltd on 30/01/2025 for parking at Car Park at Foreman Centre off High Street, Headcorn, Ashford, TN28 9NE. I have already appealed to the operator, and they have rejected my appeal. I believe this charge has been issued incorrectly, and should be cancelled for the following reasons:

1) Notice to Keeper not PoFA compliant 
Civil Enforcement Ltd. (CEL) has failed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) in order to establish keeper liability. POFA requires the NTK to clearly state that the keeper will be held liable if the driver is not identified. The NTK does not include this wording, meaning CEL cannot legally transfer liability to the keeper. 
Under Paragraph 9(2)(f) of POFA, the NTK must explicitly warn the keeper that they will be liable after 28 days if the driver is not identified. CEL omits this key statement, making the notice non-compliant.
For the above reasons, and since I am the registered keeper and CEL has not identified the driver, I am under no legal obligation to pay this charge. I request that the PCN be cancelled immediately.

2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As Civil Enforcement Ltd 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:
- the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
- any conditions or restrictions on parking control and enforcement operations, including --- any restrictions on hours of operation
- any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
- who has the responsibility for putting up and maintaining signs
- 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. 

In this instance, the operator has not demonstrated that the signage at the site complies with the requirements of PoFA 2012 nor Section 18 of the BPA Code of Practice. The Code requires that:
- Signs be prominently displayed at all entry points and throughout the car park.
- The terms and conditions be clear, legible, and easily understood.

Civil Enforcement Ltd has provided no photographic evidence to confirm at any point to illustrate that the signage at the car park was visible, legible, or compliant. Without clear signage, no contract could have been formed between the driver and Civil Enforcement Limited.

As such, for this appeal, I request Civil Enforcement Ltd to submit 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 also 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.

fuziduck

Having read this thread it would appear that the NTK is actually compliant and therefore my Point 1 should not be included on the POPLA appeal. 

Coupon-mad

fuziduck said:

Having read this thread it would appear that the NTK is actually compliant and therefore my Point 1 should not be included on the POPLA appeal. 

The only points you might win on at POPLA would be on the landowner authority point or if the £100 is buried in small print on the sign.

Or on the '5 minute rule' if an hour's parking was paid for, but it took a while to pay.

fuziduck

Ok, final appeal as follows, with added sentence saying:

The signage fails to clearly state the charge amount in a sufficiently large font. Instead, any reference to a charge is hidden within the detailed terms and conditions, making it difficult for drivers to notice or understand. BPA Code of Practice (Section 19.3 & 19.7) states that important information, such as parking charges, must be clearly legible, prominently positioned, and easy to read. Your signs do not meet this requirement.

 
Appeal:

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

As Civil Enforcement Ltd does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

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:
- the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
- any conditions or restrictions on parking control and enforcement operations, including --- any restrictions on hours of operation
- any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
- who has the responsibility for putting up and maintaining signs
- the definition of the services provided by each party to the agreement

2) 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. The signage fails to clearly state the charge amount in a sufficiently large font. Instead, any reference to a charge is hidden within the detailed terms and conditions, making it difficult for drivers to notice or understand. The BPA Code of Practice (Section 19.3 & 19.7) states that important information, such as parking charges, must be clearly legible, prominently positioned, and easy to read. Your signs do not meet this requirement.

In this instance, the operator has not demonstrated that the signage at the site complies with the requirements of PoFA 2012 nor Section 18 of the BPA Code of Practice. The Code requires that:
- Signs be prominently displayed at all entry points and throughout the car park.
- The terms and conditions be clear, legible, and easily understood.

Civil Enforcement Ltd has provided no photographic evidence to confirm at any point to illustrate that the signage at the car park was visible, legible, or compliant. Without clear signage, no contract could have been formed between the driver and Civil Enforcement Limited.

As such, for this appeal, I request Civil Enforcement Ltd to submit 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 also 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.

Coupon-mad

So the parking wasn't paid for? Why? What went wrong?

fuziduck

Parking paid for, but no copy of receipt. Suspect the number plate was not input correctly by driver (perhaps nothing input but the system still allowed a ticket to be paid).
It seems to be a common problem at this particular location, however because I don't see it as being POPLA winning point I didn't think it relevant to discuss here.

https://www.kentonline.co.uk/weald/news/it-s-a-lovely-village-but-the-parking-problems-are-putting-314962/

Coupon-mad

fuziduck said:

Parking paid for, but no copy of receipt. Suspect the number plate was not input correctly by driver (perhaps nothing input but the system still allowed a ticket to be paid).
It seems to be a common problem at this particular location, however because I don't see it as being POPLA winning point I didn't think it relevant to discuss here.

https://www.kentonline.co.uk/weald/news/it-s-a-lovely-village-but-the-parking-problems-are-putting-314962/

On the contrary, you need to have your first point telling POPLA that parking WAS paid for!

Stop just using a template.  You need your main point first. Write it yourself, and state that this was at best, a 'keying error' but CEL hasn't bothered to identify the payment and didn't offer to settle at £20 (as per the Code of Practice).

fuziduck

Appeal withdrawn by the operator, therefore PCN cancelled. I'll take this as a POPLA win!

Unsure what point they decided they wouldn't win against, or perhaps they took another review of their payment system.