Permit not Visible

Another thought. The concierge passed to me the Development Manager's email address. I was considering emailing him to explain the situation and ask whether he would be able to get the charge cancelled. I was hesitant to do so in case he passed my email on to the PPC and it undermined my claim. Reading through some of the templates, I'm now wondering whether if he did forward my mail and they used it, would this actually strengthen my case?

Unsuprisingly, appeal to development manager drew a blank. I'll be raising appeal to issuer today as per advice in Newbies section. I'll update this thread with any developments.

So, predictably, my appeal on the grounds of inadequate signage was denied, so I will now be lodging a POPLA appeal. My appeal did state that a temporary permit had been obtained and a copy was provided.

Any thoughts on this line of defence:

The driver spoke to the concierge on arrival and was issued with a temporary parking permit. The permit, which is in my possession, simply states the validity "from" and "to" times and that it is only valid in bays marked "V". It does not state that it must be displayed in the car or that the driver should additionally read the operator's signage. I understand that the concierge advised that the permit should be displayed, but not that the driver should read the signs.

In these circumstances, why would the driver feel it necessary to seek out the operator's sign and read it? Would it not be reasonable of the driver to assume that the terms of parking are contained on the temporary permit and that, if other terms applied, this should be stated on the permit, or advised verbally?

I also received an NTK today from TNC Parking services, which I shall ignore while the appeal is ongoing. I have not disclosed the drivers name and have no intention of doing so unless instructed by a court.

Many thanks and kudos to all who contributed to this thread and gave me advice on framing my appeals. The outcome was a success - I have posted the POPLA decision in the relevant thread.

Note that the appeal succeeded because of deficiencies in the Notice to Keeper, issued by TNC Paring Services. It's a shame not to have learned POPLA's opinion of my other grounds, but a win is a win.

Once again, thanks (and a happy new year) to all.

Below is final version of the POPLA appeal as submitted, followed by their response and my comments thereto (in next two posts):

I write to appeal against this charge notice. I appeal as keeper of vehicle XXXXXXX and no admission is made as to the identity of the driver and his or her identity should not be inferred from below. I am satisfied that the driver has provided a truthful account of their actions on the day, including conversations with the Landlord’s representative.
The charge made by the operator, P4Parking is out of all proportion with the cost of any alleged contravention of the terms of parking and my initial appeal to the operator was rejected on what I consider to be spurious grounds. Therefore, I am now elevating this appeal to POPLA on the following grounds:

1. Parking was permitted by the landlord and driver complied with their expressed terms
By prior arrangement, the driver reported to the concierge’s hut opposite the entrance to the site on arrival. He/she was issued with a temporary parking permit, a copy of which is attached, and told that they must park in a marked visitors’ parking space. The permit indicates validity time (16:00 21/8/17 to 21:00 21/8/17) and that it is only valid in bays marked “V”. It does not refer to any other terms or mention any charges or penalties; neither does it advise that the driver should read P4Parking’s signs. The reverse of the permit is blank. This may be verified with the ********* concierge office by email *********** or telephone ******** or *********.
I would contend that the contract for parking was made at the time that the permit was issued and only on terms that the driver would reasonably have been aware of at that time. The car was parked correctly in a visitors’ space, as acknowledged by P4Parking in their rejection letter. The fact that the permit, which had been placed on the dashboard but had fallen into the gap between the dashboard and windscreen, was not visible to the operator’s employee is not relevant in this case as the contract for parking was made directly between the driver and the landlord’s representative (the concierge), not with the operator.


2. No Loss to Landlord
The landlord issued the driver with a permit allowing them to park without charge between 16:00 and 21:00 on 21 August 2017. There was no suggestion that the driver should normally pay to park here or that the same space may have been occupied by a paying customer, therefore no loss flowed from the driver’s alleged breach. The penalty is not a genuine pre-estimate of loss, so cannot stand.

3. Operator’s signage does not satisfy requirements as set out in Beavis
P4Parking referred to their signage in their rejection of my first appeal
“The signage, which is clearly displayed at the entrance to and throughout the car park, states that this is private land, the car park is managed by P4Parking, and parking tariffs apply, or a Parking Charge will be incurred, along with other terms and conditions of the car park by which those who park in the car park agree to be bound. P4Parking does ensure that the signage is of adequate size, visible at a distance and viewable.”
However,
· As advised, the driver was issued a permit that did not advise them to read the signs. As the terms of parking were agreed in the concierge’s hut, the presence of signs on the site that may have been seen after the permit was issued is irrelevant
· There is no sign at the entrance to the car park
· The sign that P4P identify as nearest to where the car was parked was attached to fence some 20 feet from the road side, on the other side of a grass verge. The only words legible from that distance are “Visitors Parking Only”. All other text on the sign is too small to read unless one were to stand right in front of the sign, on the grass (see photo, which is of the sign visible in P4Parking’s own photograph and was taken from the grass verge).
· Despite P4Parking’s assertion to the contrary, I would contend that the signage fails to satisfy the tests of legibility laid down in Beavis. It is too far from the road to read anything other than the words “Visitors Parking Only”, the wording is cramped and the parking ‘charge’ itself is in the smallest font on the sign. 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 BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more clearly, on a lower, closer sign, in far larger lettering and with fewer adjacent words.
· The driver would not have seen this sign on foot as it was some 30 feet from the parked car on the passenger’s side. The driver walked away from the car in the opposite direction, across the road.
· The driver did not see the sign and had no cause to seek it out, the terms of parking having been agreed on issuance of the permit in the concierge’s hut

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4. No evidence of Landowner Authority
P4Parking 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


5. Notice to Keeper Issued too late
I received a Notice to Keeper (NTK) in respect of this ‘charge’, dated 4 November 2017, from another party, TNC Parking Services (copy attached). This notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the date it was issued. 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 are met as stated in paragraphs 5, 6, 11 & 12. P4Parking and TNC Parking Services, who issued the Notice to Keeper, 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 a mandatory timeline and wording:

’’The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states:

’’The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper was issued seventy-five days after the alleged
event and sixty days after the last day on which it could correctly have been issued. Therefore, P4Parking and TNC Parking Services have failed to act in time for keeper liability to apply.

I consider any one of the above reasons as sufficient for you to uphold my appeal. I look forward to your positive response.