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  • FIRST POST
    • sausagecasserole
    • By sausagecasserole 3rd Dec 19, 6:22 PM
    • 9Posts
    • 4Thanks
    sausagecasserole
    Question about POFA
    • #1
    • 3rd Dec 19, 6:22 PM
    Question about POFA 3rd Dec 19 at 6:22 PM
    I'm a newb, so please be a bit patient.

    Thanks for all the stuff on here. I'm using the stuff in the Newbies thread to put together a POPLA appeal. There's one part I'm not really getting.

    I have a Parking Charge Notice from Smart Parking Ltd. The driver (not me) paid the fee (I have the ticket) and I got a charge stating that I was receiving it because “By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”.

    The carpark requested the driver to enter the registration into a machine. The registration was incorrectly entered, but clearly identifiable as a botched version of the correct one. So they know that there was a purchase and the car was not in the carpark for longer than permitted. When I followed their appeals procedure, they sent a letter back with a different reason than was originally given - that the contract can been broken because of the wrong registration.

    Nowhere does the charge mention POFA 2012. Moreover, the only mention of the driver is in some tiny text that states

    If you were not the driver of the vehicle and you wish to provide the drivers details, lodge a dispute, appeal or query this must be made online or in writing.
    To me that does not "invite the keeper to name the driver" (BSA's AOS Item 20.11). Nor does it "inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full" (POFA 2012, Schedule 4, Item 9 (2) (b)).

    I've seen posts stating that this ought to kill the whole thing in the POPLA appeal, but I failed to find any sample text (again, I'm a newb, I expect I don't know how to look properly).

    I'd be grateful if someone were to point me to some sample text regarding POFA 2012 (if I'm right in thinking it's important here), and also to any other sample text regarding, say, whether charging £100 for a mistyped reg is "reasonable" and whether the charge has any validity at all given that the original stated reason for the charge was untrue.

    I'm also going to complain to DVLA that they gave away my personal information, the "reasonable cause" being that a registration had been mistyped. Is there any experience of getting anywhere following that route?

    Again, thanks, and sorry if this covers old ground and is too long.
Page 2
    • Umkomaas
    • By Umkomaas 10th Dec 19, 1:25 PM
    • 26,044 Posts
    • 42,361 Thanks
    Umkomaas
    Split it up over 2 or 3 separate posts, but make sure you're not copying and pasting directly from Word - or your IP address will be blocked by MSE.

    https://forums.moneysavingexpert.com/showthread.php?t=5637311

    Instead, C&P from Word to Notepad, then C&P from Notepad to the forum. If using a Mac, the Mac version of Notepad is TextEditor.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask.
    Give a man a fish, and you feed him for a day;
    show him how to catch fish, and you feed him for a lifetime.
    • sausagecasserole
    • By sausagecasserole 10th Dec 19, 1:58 PM
    • 9 Posts
    • 4 Thanks
    sausagecasserole
    Thanks all. I've removed "The charge is a penalty" on your advice above. The whole of what I have is below. I'll post it in 2 or more parts due to the word limit.



    The stuff under "The signs in this car park" is heavily reduced because the charge notices were prominent, but the so-called 'contract' was in tiny text at the entrance.

    Part 3, "simple keying errors" is written by me (please point me to other versions - I failed to find any). Towards the end, I start lecturing them on the BPA's AOS. Please tell me if that's going too far.

    This stretches to just 11 pages in the document I've written. Is that enough? What else should I add?

    As ever, many thanks.



    Appeal re POPLA code: 1234567890 – xxxx v Smart Parking Ltd

    I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver.

    I contend that I am not liable for this parking charge on the basis of the below points.


    1) The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the wording used.

    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. Smart 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 mandatory wording.

    POFA Schedule 4 Paragraph 9 states that the notice must -

    inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

    Since no such statement appears on the Parking Charge Notice, the notice is out of compliance with POFA Schedule 4 and has no validity.

    Also, POFA Schedule 4 Paragraph 9(f) states that the notice must

    warn the keeper 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;

    No such warning appears in the notice and so the applicable conditions under Schedule 4 are unmet and the operator does not have the right to recover from the keeper any unpaid amount.

    The PCN also fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states: “The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…’’

    This NTK stated that “either’’ there was not appropriate parking time purchased “or’’ the vehicle remained longer than permitted (neither of which is a ‘fact’). In their rejection letter Smart Parking revealed too late that they contend that “It is the responsibility of the driver to enter their registration into the machine correctly, as you have failed to do so we can confirm the Parking Charge Notice was issued correctly...”. This alleges that I was the driver (I was not). It is also an alleged ‘fact’ that the NTK failed to state in the first place, so the Parking Charge Notice was NOT issued correctly. This is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.



    2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

    In this case, no other party apart from an evidenced driver can be told to pay. 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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. Indeed the driver (who was not me) had an appointment at an establishment close to the car park at the time the ticket was purchased and has documentary evidence to that effect. The Operator has made no attempt to establish the facts of who the driver was, and if they had made such attempts they would have established that the driver was not me.

    Furthermore, the vital matter of full compliance with the POFA 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 cannot transfer the liability for the charge using the POFA.

    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) Current POPLA position on simple keying errors

    According to the letter from the Operator of xx November 2019, the violation of the claimed “contract” that I made (despite the fact that I was not at the location at the time and was not the driver) stated that “either’’ there was not appropriate parking time purchased “or’’ the vehicle remained longer than permitted.

    The letter from the Operator of xx November 2019 makes a different allegation, that “It is the responsibility of the driver to enter their registration into the machine correctly” before going on to inaccurately and without reference to any evidence allege that I was the driver.

    The registration of the vehicle in question is AB12 ABC. An image of the purchased ticket appears below.

    [IMAGE OF TICKET GOES HERE]

    According to the POPLA Annual Report of 2018, section Simple Keying Errors, beginning on page 6,

    "Many private car parks are now managed using Automatic Number Plate Recognition cameras. The cameras capture a vehicle’s registration as it enters and exits the car par to check the length of stay.

    "The terms and conditions of the car park might require a motorist to provide their registration so that the parking operate can link the motorist’s actions to the information captured on camera… [A] motorist might be required to enter their registration when making a payment (at a machine or on an app), so the operator can see that payment has been made for a specific vehicle.

    "This process can cause problems for motorists. A motorist who’s paid for their parking… might mis-key their registration…

    "The British Parking Association recognised that this was an area of frustration for motorists. In October 2017, it sent a message to its operators reminding them to put motorists at the heart of their thinking and to focus on effective car park management, rather than mistake punishment. The British Parking Association suggested that its operators considered cancelling Parking Charge Notices where it was clear that the parking charge had been caused by a simple keying error."

    Given the time on the ticket, and the partial registration recorded, it is extremely unlikely that the person who bought the ticket was someone other than the driver (who wasn’t me). Either the person who keyed in the registration made a “simple keying error” or the machine was faulty and did not record the key-strokes that were made. Indeed this latter hypothesis seems the more likely: the person who was pressing the keys managed to key the majority of them correctly.

    Either the Operator is engaging in “mistake punishment” or their machine was faulty. If it is the former, they are flouting the BPA code of conduct by not putting motorists “at the heart of their thinking”; if it is the latter, they are pursuing motorists who are unable the fulfil the terms alleged “contract” due to no fault of their own and due entirely to the fault of the Operator.

    The Operator must provide all records of the testing of the machine at the car park in question, including all quality control reports and audits. If they are unable to provide compelling proof that the machine was working properly on the day of, and at the time of, the alleged breach of “contract” then their claim that the driver, who they wrongly claim was myself, was responsible for entering the full registration correctly can reasonably be assumed to be predatory practice, the Operator themselves having made it so that the terms of the claimed “contract” could not be fulfilled. If the Operator does provide such compelling proof, then, according to the POPLA Annual Report of 2018, are engaging in “mistake punishment”, are not putting motorists “at the heart of their thinking” and are in breach of BPA’s AOS. Further, by ignoring BPA’s recommended practice and in it’s “failure to comply with the Code” the Operator clearly “brings the BPA and its membership into disrepute.”

    Indeed, the practices of Smart Parking Ltd have been explicitly discussed in parliament. Pete Wishart MP states that

    "I am sick and tired of receiving emails from people complaining about the behaviour of parking companies, telling me that they will never again visit Perth city centre because of the negative experience they had when they had the misfortune to end up in a car park operated by one of these companies. I have received more complaints about one car park in the city of Perth than about any other issue. That car park is operated by the lone ranger of the parking cowboys: the hated and appalling Smart Parking—I see that many other Members are unfortunate enough to have Smart Parking operating in their constituencies. It has reached the stage where one member of my staff now spends a good part of each day just helping my constituents and visitors to my constituency to navigate the appeals process."

    Since “the hated and appalling” “parking cowboys” explicitly ignore your “suggestion” and insist on drawing such negative attention to the private parking industry, it is difficult to understand how item 6.3 of the BPA’s AOS has not led to the instigation of items 6.4 – 6.9.
    • sausagecasserole
    • By sausagecasserole 10th Dec 19, 2:05 PM
    • 9 Posts
    • 4 Thanks
    sausagecasserole
    4) Breach of the BPA Code of Practice on ANPR.

    It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN.

    The payment made would in fact be very easy to identify if the Operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.

    I put this Operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching payment. The Operator would have been in no doubt that the car parking was paid for, had they made the required checks.

    And the situation is fully within this Operator’s control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket machines. As a number-plate is keyed into the machine, a truly ‘connected’ system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already).

    To charge under these circumstances with a likely faulty machine, was not ‘appropriate’ or fair and contravenes the ANPR requirements of the BPA CoP.

    Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRN, the driver had no idea that secret camera data would later be used against them to bind them to a charge they knew nothing about and did not agree to. The signage states only that “The parking time is calculated by the ANPR cameras from the point of entry to the point of exit.” It does not state that the cameras will be used to pursue motorists acting in good faith and that the Parking Charge Notice will make untrue allegations about the keeper of the vehicle.

    Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point:


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

    According to signage at the car park in question, “This car park is private property and is managed by Smart Parking Ltd on behalf of the owners.” As such, the Operator does not have proprietary interest in the land, so 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.
    • sausagecasserole
    • By sausagecasserole 10th Dec 19, 2:07 PM
    • 9 Posts
    • 4 Thanks
    sausagecasserole
    6) The signs in this car park are not prominent, clear or legible from all parking spaces

    I considered 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 minuscule font size of the text relating to the contract is NOT sufficient.

    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. The only text indicating that a contract was being entered into was in a tiny font, embedded in a large amount of other text, and at the entrance to the site, facing outwards, giving the driver (who was not me) inadequate time to read through it in detail, even if the driver would have found the text legible at all. The sign was not visible from any of the parking bays.

    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:

    [LINK GOES HERE]

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

    [LINK GOES HERE]

    ''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 GOES HERE]

    ''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 of the alleged 'contract' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park.
    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. 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.

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

    [LINK GOES HERE]

    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 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.
    • Coupon-mad
    • By Coupon-mad 10th Dec 19, 11:04 PM
    • 79,154 Posts
    • 93,009 Thanks
    Coupon-mad
    You will win, as Smart can't hold you liable. Change this to the right para:
    POFA Schedule 4 Paragraph 9(2)(f)
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
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