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  • FIRST POST
    • Mustang2006
    • By Mustang2006 11th Feb 18, 6:34 PM
    • 4Posts
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    Mustang2006
    Met parking services
    • #1
    • 11th Feb 18, 6:34 PM
    Met parking services 11th Feb 18 at 6:34 PM
    Hi
    I received a NTK in the post the other day for my daughter's car. I am the registered keeper. She parked in a Starbucks car Park but went in to McDonald's. There is photographic evidence of this but no actual photo of the signage. So without me taking a trip to the car Park I don't know how clear the signage is or the wording of it.. anyway the incident happened on 01/01/2018 and they issued their penalty notice on 07/02/2018. There was no PCN placed on the windscreen at the time. I believe if no PCN is placed on the windscreen they have to issue a penalty notice in the post within 14 days. Is this correct?? I sent an appeal to them as the registered keeper. Stating about the signage and the 14 day thing. They rejected my appeal on the signage point but mentioned nothing on the 14day bit. Do I have a case to take to popla?? Thanks
Page 1
    • Coupon-mad
    • By Coupon-mad 11th Feb 18, 6:39 PM
    • 56,044 Posts
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    Coupon-mad
    • #2
    • 11th Feb 18, 6:39 PM
    • #2
    • 11th Feb 18, 6:39 PM
    Yes and yes, the keeper wins at POPLA on the basis of 'no keeper liability'.

    Search the forum for 'POPLA ANPR no keeper liability' or 'POPLA MET no keeper liability' and copy a recent one from 2017 and adapt it, show us here.

    LONG POPLA appeals are deliberate. Template points are set out in the NEWBIES thread post #3.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Mustang2006
    • By Mustang2006 25th Feb 18, 9:45 PM
    • 4 Posts
    • 0 Thanks
    Mustang2006
    • #3
    • 25th Feb 18, 9:45 PM
    • #3
    • 25th Feb 18, 9:45 PM
    hi sorry it has taken a while. but this is what i am going to with.as i have seen someone use this successfully with the same problem at the same car park just got to dig out the links to insert.

    POPLA Ref ______
    MET Parking Services PCN no ______

    A notice to keeper was issued on 07th February 2018 and received by me, the registered keeper of _______ for the alleged contravention of !!!8216;Breach of terms and conditions!!!8217;!!!8217; at Southgate Park, Stansted. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.
    1) MET has deliberately chosen not to use POFA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
    2) Non-compliance with requirements set out in Schedule 4 of POFA 2012
    3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    4) Insufficient evidence of the alleged contravention
    5) 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


    1) MET has deliberately chosen not to use POFA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

    MET has deliberately chosen not to use POFA and make no mention of such or the transfer of liability to the keeper under POFA 2012 in the Notice to Keeper I have received.

    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 which they have not 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.

    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

    !!!8220;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 !!!8216;reasonable presumption!!!8217; 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 which in this case the operator is not.

    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."

    The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

    2) Non-compliance with requirements set out in Schedule 4 of POFA 2012
    If MET Parking Services did wish to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012, which they have not, the Notice to Keeper must meet the strict requirements set out in Schedule 4 of POFA 2012; paragraph 8 states specifically !!!8220;The notice must!!!8212;specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;!!!8221; The notice to keeper that I have received does not state the period of parking to which the notice relates, only the time the PCN was issued.

    Due to the omission of this detail the notice to keeper does not comply with Schedule 4 paragraph 6 of POFA 2012 and means that myself, the registered keeper of the vehicle cannot be held to account for the alleged debt of the driver

    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).

    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) Insufficient evidence of the alleged contravention
    The evidence provided by MET Parking Services for the alleged !!!8220;breach of terms and conditions!!!8221; stated as !!!8220;Driver not on Premises!!!8221; does not show the location of the driver in any way or for any period of time and therefore can not be used as evidence as such. A photo of the car in question does not account for the location of the driver.
    I challenge that MET Parking Services cannot POSSIBLY have 'conducted a survey' of the entire location including inside any buildings/toilets etc. of the multiple resturants/coffee shops on site The Blog below shows that this is a common predatory tactic reportedly played out by MET for years. MET are put to strict proof that the occupants of the car were not on site patrons of Southgate Park, and to show proof of the alleged 'site survey' and how they established the status of everyone in the park at the material time, including corroborating evidence from the alleged witness.


    5) 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

    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:

    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:

    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). Areas of this site are 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.

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

    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!!!8221; 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!!!8221; or even larger.''

    ...and the same chart is reproduced here:

    link

    ''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. 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

    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.

    I therefore request that POPLA uphold my appeal and cancel this PCN.
    • KeithP
    • By KeithP 25th Feb 18, 10:00 PM
    • 6,555 Posts
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    KeithP
    • #4
    • 25th Feb 18, 10:00 PM
    • #4
    • 25th Feb 18, 10:00 PM
    Change this:
    I am the appellant throughout (as I am entitled to be),
    to this:
    I am the keeper throughout (as I am entitled to be),
    It doesn't make sense otherwise.
    Of course you are the appellant, you are the one appealing.
    Last edited by KeithP; 25-02-2018 at 10:02 PM.
    .
    • Mustang2006
    • By Mustang2006 25th Feb 18, 10:12 PM
    • 4 Posts
    • 0 Thanks
    Mustang2006
    • #5
    • 25th Feb 18, 10:12 PM
    • #5
    • 25th Feb 18, 10:12 PM
    Ok will do. Thanks. Other than that should be all good yes??
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