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  • FIRST POST
    • Carthesis
    • By Carthesis 12th Oct 18, 10:59 AM
    • 532Posts
    • 910Thanks
    Carthesis
    Britannia Parking PCN - POPLA Appeal
    • #1
    • 12th Oct 18, 10:59 AM
    Britannia Parking PCN - POPLA Appeal 12th Oct 18 at 10:59 AM
    Right - this is my first POPLA rodeo despite having fought off a couple of these charges in the past.

    Brief potted history
    Vehicle parked in a Britannia pay and display carpark (in reality a bit of waste land they can't even be bothered to surface of keep in good nick, but that's by the by) near the office where the driver works.

    Driver parks there regularly (practically daily) and used to pay with coinage which obviously relies on having said coins handy. Britannia then implemented "Pay by Phone", hence can purchase parking through an app - easy peasy. The driver had been using the app to pay for parking for some time with no issues, and as such had been nowhere near the (singular) full T&C signage which is only displayed adjacent to the P&D machines.

    On August 3rd this year, driver left the car in the car park, walked out of the convenient rear access to the car park (theres a vehicular one-way system with one entrance and one exit, which are not the same, but pedestrians just duck under the fence) hence didn't go near the P&D machines, and tried to pay by app.

    The payment failed. Tried again. Payment failed. Went to the office and tried again. Payment failed. You get the idea.

    Eventually the payment went through, and the driver paid for a full 24hr period of parking (if you pay for 8 hrs, the app "upgrades" you at no cost to a full day). This was at about 12:30. Got the emailed and text message receipt. Sorted - or so you'd think.

    Driver went back to the car at about 16:00, and 'lo! There was a windscreen ticket.

    As RK, I appealed. Sent a letter off explaining the circumstances, including screenshots of the receipts, having not rec'd an NtK. The letter went on September 10th.

    I got a reply from Britannia, rejecting the appeal and providing me a POPLA code, dated October 8th, which landed with me on October 11th.

    I still don't have an NtK, which by my reckoning should have landed on 28th September.

    So - I've got a POPLA appeal to write.
Page 1
    • nosferatu1001
    • By nosferatu1001 12th Oct 18, 11:03 AM
    • 3,722 Posts
    • 4,532 Thanks
    nosferatu1001
    • #2
    • 12th Oct 18, 11:03 AM
    • #2
    • 12th Oct 18, 11:03 AM
    What is the relevance of the signs? Do they say pay before leaving or something?
    You included osme dates, but spread out, so maybe give
    date of alleged incident
    date of appeal
    date of rejection

    in one block.

    Its an easy appeal to write - no NtK has ever been served on the Appellant, therefore there is no possible keeper liability.

    Also SAR the company NOW. They might fake a NtK to send to POPLA. Doing it now should reveal WHEN any letter wsa generated. If the system carefully omits this, you point out that without such an audit trail the Operator cannot prove when the letter was generated, cannot provide a system showing it was posted and when, and so they canot be presumed to have served ANY notice.
    • Carthesis
    • By Carthesis 12th Oct 18, 12:41 PM
    • 532 Posts
    • 910 Thanks
    Carthesis
    • #3
    • 12th Oct 18, 12:41 PM
    • #3
    • 12th Oct 18, 12:41 PM
    Dear POPLA Adjudicator,

    I am the registered keeper of vehicle xxxxxx and am appealing a parking charge (ref. 1091386) from Britannia Parking (“the Operator”) on the following points:

    1. A compliant Notice to Keeper was never served - no Keeper Liability can apply
    2. Payment for the parking period has been made in full, exceeding the time required for the stay – no loss has been suffered
    3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
    4. 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
    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    6. General compliance with the BPA Code of Practice
    These points are expanded on below.

    1. No Keeper Liability
    The 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 relevant 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;

    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.
    6(2) If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.

    8(5) The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

    The outcome of the above is that a fully-compliant Notice to Keeper (NtK) must be delivered to the Registered Keepers address within the 'relevant period', which is defined in 8(5) as a total of 56 days beginning with the day after that on which any notice to driver was given. In this case, the alleged infraction occurred on 3rd August 2018 (03/08/2018), hence the NtK should have been delivered to the address of the Registered Keeper by 29th September 2018 (29/09/2018). To date, no such NtK has been received by the Registered Keeper, and the Operator is put to strict proof that the NtK was produced and delivered by the dates stated.

    This Operator has failed to serve a fully-compliant NtK within the defined ‘relevant period’ which is strictly set out under POFA 2012, hence have consequently failed to meet the conditions for Keeper Liability as demonstrated above.

    I therefore contend that, as Registered Keeper, I cannot be held liable for any alleged charge as the mandatory documentation has not been correctly produced and delivered in a timely fashion, in accordance with the strict requirements set out in POFA 2012 for transfer of liability.

    2. Full payment has been made – no loss
    Having discussed the issue with the driver at the time of the alleged breach, I find that on the day in question (03 August 2018 for the avoidance of doubt), the vehicle was parked in the location claimed. However at the time of parking, the driver informs me that repeated attempts were made to pay for parking via the ‘PayByPhone’ app which is prominently advertised on the site and which has been used regularly and repeatedly. On the date in question, there was an apparent failure of the payment system on the app which led to payments not being processed, hence paying for parking was not possible.

    The driver further informs me that, throughout the course of the morning, several attempts were made to pay for parking before the time noted on the windscreen notice, with the same result. I consider this to be valid attempts for payment to be made.
    Furthermore, the driver informs me that another attempt to pay for adequate parking was made at 12:33PM, which was successful. As the vehicle had been parked since approximately 9:00AM and was due to remain until approximately 15:30PM, the driver then paid for adequate parking (8 hours, increased automatically to 24 hrs) to cover the entire period for which the vehicle was parked, instead of the outstanding period. Therefore, no loss has been incurred. I attach a screenshot showing the payment for parking for your reference.

    Figure 1: Image showing full payment made for 8 hrs parking

    The statement on the Notice to Driver (NtD) states that “Parking charges relating to the specified period of parking have not been paid in full and remain at £85”. I contend this inaccuracy of this statement as evidenced by the above demonstrating that full payment was made at the first available opportunity. At this time, I therefore contest that as no loss has been suffered, there is no breach of contract as alleged.

    3. 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 have been the appellant throughout (as I am entitled to be), and there has been no admission regarding who was driving, and no evidence has been produced by the Operator. 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, as in this case. 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, and it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NtK.

    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:
    “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.''

    4. Prominence and clarity of signage

    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.

    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:

    WEB LINK

    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.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    WEB LINK

    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, 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). The majority of this site is unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, 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 2.6.16, 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 operators 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 so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    WEB LINK

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    WEB 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.''

    ''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 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.
    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 judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    WEB LINK

    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.

    So, for this appeal, I put this operator to 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 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.

    5. No evidence of landowner authority

    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 - 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:
    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”

    6. Compliance with the BPA Code of Practice

    All points under this heading make reference to the January 2018 version of the BPA Code of Practice (CoP) which is freely available on the BPA website.

    I refer first to clause 19.5 of the BPA AOS Code of Practice (CoP), which states “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable”. I contend that, given that payment has been made in full for the period of parking – and in fact for a period of parking significantly in excess of that actually used by the driver – that the charge is neither proportional nor commercially justifiable.

    Alternately, clause 19.6 of the same CoP states that charges should not be “punitive or unreasonable”. I additionally contend that in the circumstances where full payment has been made, the charge both unreasonable and punitive.

    Secondly, I refer to clause 19.10 of the CoP, which requires that references to “ParkingEye vs. Beavis” should be referenced and extracts from it must be properly quoted. As noted elsewhere in this appeal, the Beavis case turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners. The Supreme Court were keen to point out the decision related to that car park and those facts only, and should not be widely applied in the manner you have suggested in your appeal reply letter (dated 08 October 2018). I contend that the statement made in this letter is therefore misleading and not in accordance with the CoP.

    Thirdly, clause 21.10 of the CoP states clearly that “If you are not making use of the keeper liability provisions of POFA or you are unable to achieve the deadlines specified therein, your letter must
    not reference POFA or state that the keeper is liable”. Although no dedicated NtK has yet been received, it is noted that your appeal rejection letter (dated 08 October 2018, which is outside the mandatory 56 day period in which keeper liability can be invoked in a case where a NtD has been provided – see Point 1 above) refers heavily to POFA 2012 and the right to recover unpaid charges from the registered Keeper. This is clearly a breach of the requirements of the CoP, as by this point you are aware that no NtK has been issued inside the mandatory timeframes, and thus the provisions of POFA 2012 cannot be held to apply.

    Fourth, clause 22.3 requires that you make available to the motorist and photographic evidence you have available. This was requested in the original appeal letter, but was not provided. The Operator is therefore in breach of the BPA CoP in this regard.

    Fifth, clause 22.8 of the requires explicitly that appeals must be “acknowledge(d) or reply(ied) to” within 14 days of receipt. Following postage of the original appeal on 10th September 2018, this was deemed to be deleivered to the Operator by 13th September. This date was subsequwently confirmed by the Operator in their first (and only) appeal response letter, which is dated 08 October 2018 and was only received on 11th October. The Operator is therefore clearly, and self-admittedly, in breach of the BPA CoP in this regard.
    • Carthesis
    • By Carthesis 12th Oct 18, 12:48 PM
    • 532 Posts
    • 910 Thanks
    Carthesis
    • #4
    • 12th Oct 18, 12:48 PM
    • #4
    • 12th Oct 18, 12:48 PM
    What is the relevance of the signs? Do they say pay before leaving or something?
    Originally posted by nosferatu1001
    They appeal rejection claims the signs say that if the PayByPhone app isn't working, you should call a customer service rep and pay directly.

    However if the app has never failed before, and someone just walks out of the car park assuming they can pay by the app (and subsequently does so, albeit later in the day when the app works again), then that person is not likely to be aware of the number to call etc.

    Admittedly, with hindsight, should the same happen again I will insist that the driver pays more attention and calls should the app fail, but the app has worked perfectly since with no issues.


    You included osme dates, but spread out, so maybe give
    date of alleged incident
    date of appeal
    date of rejection

    in one block.

    Its an easy appeal to write - no NtK has ever been served on the Appellant, therefore there is no possible keeper liability.
    Originally posted by nosferatu1001
    I haven't done so for the simple reason that I only posted this as background, but yes, useful.

    Incident: 3rd August
    Appeal: 10th September (rec'd 13th Sept)
    Rejection: 8th October (rec'd 11th Oct)

    With such dates, note that the Operator is in breach of the BPA CoP cl. 22.8 requiring an appeal response within 14 days.

    Also SAR the company NOW. They might fake a NtK to send to POPLA. Doing it now should reveal WHEN any letter wsa generated. If the system carefully omits this, you point out that without such an audit trail the Operator cannot prove when the letter was generated, cannot provide a system showing it was posted and when, and so they canot be presumed to have served ANY notice.
    Originally posted by nosferatu1001
    Good idea. Easy enough to do as I have a template letter kicking around for that.
    • nosferatu1001
    • By nosferatu1001 12th Oct 18, 1:23 PM
    • 3,722 Posts
    • 4,532 Thanks
    nosferatu1001
    • #5
    • 12th Oct 18, 1:23 PM
    • #5
    • 12th Oct 18, 1:23 PM
    Its not a breach that anyone will care about.
    It requires an acknowledgement, not a full response, to the appeal IF they dont respond fully within 14 days.
    • Carthesis
    • By Carthesis 12th Oct 18, 1:30 PM
    • 532 Posts
    • 910 Thanks
    Carthesis
    • #6
    • 12th Oct 18, 1:30 PM
    • #6
    • 12th Oct 18, 1:30 PM
    Its not a breach that anyone will care about.
    It requires an acknowledgement, not a full response, to the appeal IF they dont respond fully within 14 days.
    Originally posted by nosferatu1001
    And they did neither.

    I'm aware its a breach noone will care about, but I'm chucking the kitchen sink at it. It does no harm by being in there, and just serves to demonstrate the disregard they have for the AOS COP they claim to adhere to.
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