POPLA appeal help

edited 31 July 2018 at 6:00PM in Parking Tickets, Fines & Parking
5 replies 309 views
SKSHWSKSHW Forumite
3 Posts
Hi,
I not so recently received a parking ticked for parking in a permit holders only area without a valid permit, however in the area where i parked there was no signage. (The sign had actually been taken down and was laying on the floor). When i received the ticket i took pictures of the lack of signage and appealed it on these grounds- They later wrote me back stating i should should give them evidence of a valid permit???? anyways, i ignored this because they obviously didnt read my appeal at all.
I have now received my POPLA appeal letter and am struggling to find a applicable draft/template. I have read the Newbies FAQ forum, there's so much information its given me a bit of a headache. They have a template for UKPC for no NTK but my images have the sticker on them.
I have until the 4th to send it off.
Any clear help will be much appreciated !!

Replies

  • QuentinQuentin Forumite
    40.4K Posts
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    Concentrate on #3 in the newbies FAQ which covers popla appeals and has near templates for you to adapt


    You do need to construct your appeal, put a draft up here for comment before you send it
  • The_DeepThe_Deep Forumite
    16.8K Posts
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    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    Hospital car parks and residential complex tickets have been especially mentioned.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.
    You never know how far you can go until you go too far.
  • SKSHWSKSHW Forumite
    3 Posts
    Ive gone through some of the templates here and have gathered a few points,
    however most focus on the lack of visibility of the signs/no marked bays/ forbidding signs.
    Where all of these apply (permit holders only sign at the front, and a small conditions sign) i cannot find points on the fact that there was no sign in the section that i parked in at all which i feel is the most important fact?
  • nosferatu1001nosferatu1001 Forumite
    13K Posts
    10,000 Posts Third Anniversary Name Dropper
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    Lack of signage is insufficient signage, by definition.
  • SKSHWSKSHW Forumite
    3 Posts
    I have completed my draft, hopefully this will suffice please let me know,
    Thanks ! - (i tried to put in a link to the actual document but couldnt, i have gaps where the images go that back up my points)


    Dear POPLA Adjudicator,

    I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC on the following points:

    1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
    2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
    3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    4. There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location.


    A compliant Notice to Keeper was never served - no Keeper Liability can apply

    This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

    The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

    ''Right to claim unpaid parking charges from keeper of vehicle:
    4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

    (a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

    *Conditions that must be met for purposes of paragraph 4:
    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

    2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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. 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 parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

    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.

    Furthermore, the vital matter of full compliance with the POFA 2012 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.''

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

    This exact finding was made in 6061796103 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.''

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

    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).

    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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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


    4. There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location.

    Signage is inadequate, not prominent, clear or legible from all parking spaces and was either not seen or not understood by the driver, so there is insufficient notice of the sum of the parking charge and no contract could have been formed. There was no contract nor agreement on the ‘parking charge’ or the terms and conditions at all. It is submitted that the driver did not have a fair opportunity to read about any terms surrounding this enormous charge, which is out of all proportion and not saved by the dissimilar “ParkingEye Ltd V Beavis” case.

    The British Parking Associations’ (BPA) Code Of Practice (CoP) at Section B, sub-section 18 and Appendix B (version 7 as it applied at the date of the alleged ‘contract’ and demanded ‘charge’) sets out the strict requirements for signage at BPA managed car parks:

    BPA’s Code of Practice (18.2) states:

    “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”


    BPA CoP Appendix B – Entrance Signs

    “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. Any text on the sign not intended to be read from a moving vehicle can be of a much smaller size.”

    Here is a photo of the entrance to the car park listed on the Parking Charge Notice (PCN).



    Please note that this road only has one entrance located behind the position that the photographer is standing at. This illustrates the view of the driver at the time of entrance to the parking location.
    Note that an ‘Entrance Sign’ is not visible by any means. The below image illustrates there is in fact no signage upon entering the area at all.

    BPA’s Code of Practice (Appendix B) states:

    “If you think there are other circumstances where it is impractical or undesirable
    to have an entrance sign, you must tell us in advance and get our approval to
    amend the sign or not have one.”

    Arrow displays point of entry.

    ,
    Given that the BPA CoP Appendix B states that approval is required where there is no entrance sign, i therefore request evidence that such procedure has taken place and the relevant approval given.

    BPA CoP Section B, Sub-Section 18 – Signs
    18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. 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. You must use signs to make it easy for them to find out what your terms and conditions are.”

    18.3 “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site (emphasis added), so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

    Please note there was only ONE sign displaying specific parking terms within the entire area of parking, placed opposite a set of parking bays. This also could not be read without the driver having to look away from the road ahead. Positioned on a wooden fence on the right hand side when the road turns around to the left therefore in the opposite direction to where the driver should be looking. See below:


    In the “ParkingEye Ltd V 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 their decision related to that car park and those facts only. In the ‘Beavis’ case, the levied £85 charge itself was in the largest font size with a highly contrasting coloured background and the terms were legible, concise and unambiguous. There were ‘large lettering’ signs at the entrance and all around the car park, according to the Judges.
    The image below shows the ‘Beavis’ case sign as a comparison to the signs under dispute in this appeal:


    In comparison, the signage under dispute in this appeal does not demonstrate an example of the ‘large lettering’ and ‘adequate amount and prominence’ that impressed the Supreme Court Judges specifically in the ‘Beavis’ case. Here, there is insufficient signage, given that there is only one that can be referenced, with none displayed at the back area of the parking area where the vehicle was issued with the parking ticket. The single sign that does exist is unremarkable, not immediately obvious as parking terms if seen at all, considering placement and the insufficient signage visible upon entry.
    The below image shows sign and its placement in the area:




    Below is an image of the area that the vehicle was parked, and the visibility of above sign:

    The lack of signage image above allows for the presumption that such parking terms (if seem) are exempt within this area and fails to comply with section 18.3 of the BPA CoP that signs should be “throughout the site”. The one sign cannot be seen from this section of the area, giving the driver little opportunity to be aware of said terms.

    Finally, as per section 18.1 of the BPA CoP, “...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. You must use signs to make it easy for them to find out what your terms and conditions are.” Bearing this particular statement in mind and contract law in general, there was categorically no contract established between the driver of my vehicle and UKPC. As clearly demonstrated above, the driver did not have a fair opportunity to be informed about any parking terms or the parking charge.

    Thank you for considering this appeal. Regards,
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