Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • such01
    • By such01 14th Mar 18, 10:18 AM
    • 9Posts
    • 6Thanks
    such01
    PCN Orsett Hospital
    • #1
    • 14th Mar 18, 10:18 AM
    PCN Orsett Hospital 14th Mar 18 at 10:18 AM
    17/01/2018 The keeper received a PCN on windscreen for not parking in a bay, due to car park being full and not wanting to be late for appointment.
    The car park fee was paid on exit.
    The vehicle was not causing any obstruction
    Parking company is F1RST Parking BPA member.

    The keeper appealed as per the advice on MSE on 12/02/2018, which was subsequently rejected on 15/02/2018. A POPLA code was issued, giving 28 days in which to appeal - deadline 15/03/2018

    I have NOT received any NTK during this time.
    Can someone please outline what my appeal to POPLA should include- I have tried searching for "POPLA & Hospital" but cannot find any info as to the type of letter I should submit.

    Thanks for your help and apologies for submitting a new thread on this vastly covered topic.
    Last edited by such01; 14-03-2018 at 10:45 AM.
Page 1
    • The Deep
    • By The Deep 14th Mar 18, 10:59 AM
    • 9,203 Posts
    • 8,967 Thanks
    The Deep
    • #2
    • 14th Mar 18, 10:59 AM
    • #2
    • 14th Mar 18, 10:59 AM
    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 nearly always lose) and have been reported to the regulatory authority by an M.P.

    Hospital car parks
    and residential complex tickets have been especially mentioned. as fertile ground for the scammers

    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 HofC recently.

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

    and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

    You might want to mention this in your PoPLA appeal.
    You never know how far you can go until you go too far.
    • such01
    • By such01 14th Mar 18, 11:34 AM
    • 9 Posts
    • 6 Thanks
    such01
    • #3
    • 14th Mar 18, 11:34 AM
    • #3
    • 14th Mar 18, 11:34 AM
    Thanks for that
    Can you point me to the link to the appropriate popla appeal letter please?

    Thanks
    • Fruitcake
    • By Fruitcake 14th Mar 18, 11:37 AM
    • 36,621 Posts
    • 82,940 Thanks
    Fruitcake
    • #4
    • 14th Mar 18, 11:37 AM
    • #4
    • 14th Mar 18, 11:37 AM
    It's post 3 of the NEWBIES. Use every appeal point that is relevant. Post your draft here for checking before you submit it.

    By my calculations, today is day 56. No NTK means you win with no keeper liability, but include all the other points anyway. Popla codes last for about 32 days, although it will have told you 28.
    Last edited by Fruitcake; 14-03-2018 at 11:42 AM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 14th Mar 18, 4:44 PM
    • 57,301 Posts
    • 70,913 Thanks
    Coupon-mad
    • #5
    • 14th Mar 18, 4:44 PM
    • #5
    • 14th Mar 18, 4:44 PM
    Yep, start with the (post #3 of the NEWBIES thread) template about ''no NTK'', then the one about the appellant not being shown to be the individual liable, then the 'no landowner authority' one, then the 'dodgy signage' long one, changing links to actual images where possible, to illustrate your appeal in one long document.
    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.

    • such01
    • By such01 14th Mar 18, 6:20 PM
    • 9 Posts
    • 6 Thanks
    such01
    • #6
    • 14th Mar 18, 6:20 PM
    • #6
    • 14th Mar 18, 6:20 PM
    Thanks - I shall get onto it now....
    • such01
    • By such01 14th Mar 18, 8:00 PM
    • 9 Posts
    • 6 Thanks
    such01
    • #7
    • 14th Mar 18, 8:00 PM
    • #7
    • 14th Mar 18, 8:00 PM
    On the 17/01/2018, I, the registered keeper of this vehicle, received a PCN on my windscreen acting as a notice to the driver. The PCN was issued for “Not parking in marked bays”. The car park still allowed entry, despite being full, therefore vehicles were parked outside of marked bays. As this is a hospital car park, I would imagine there is a real possibility of missed appointments should one have to wait for a vehicle to exit a marked bay. The vehicle in question presented no obstruction to any parked vehicle, as can be seen below. Also, there are double yellow lines indicating where parking is not permitted but the area where this vehicle was parked had no lines. This can cause some confusion.

    Pics attached




    Parking was paid for prior to exiting the car park.


    I appealed to F1rst Parking as the registered keeper and received an email denying my appeal dated 15/02/2018. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:


    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.

    The operator 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)

    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."

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


    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 - 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

    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:


    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:



    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.

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



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


    ''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:


    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.


    How is this - I would like to submit this tomorrow if possible. All the links have been removed in order to post this, but will be included in the appeal
    Thanks for your help.
    • KeithP
    • By KeithP 14th Mar 18, 8:10 PM
    • 7,136 Posts
    • 6,584 Thanks
    KeithP
    • #8
    • 14th Mar 18, 8:10 PM
    • #8
    • 14th Mar 18, 8:10 PM
    I am the appellant throughout (as I am entitled to be)...
    Of course you are. You are the one appealing.

    That should say "I am the keeper throughout..."
    .
    • such01
    • By such01 15th Mar 18, 10:01 AM
    • 9 Posts
    • 6 Thanks
    such01
    • #9
    • 15th Mar 18, 10:01 AM
    • #9
    • 15th Mar 18, 10:01 AM
    any more feedback before submission is much appreciated
    • such01
    • By such01 15th Mar 18, 10:31 AM
    • 9 Posts
    • 6 Thanks
    such01
    just a quick question - on the popla appeal website, should I fill in the boxes or just attach the letter above?
    Thanks
    • Fruitcake
    • By Fruitcake 15th Mar 18, 10:56 AM
    • 36,621 Posts
    • 82,940 Thanks
    Fruitcake
    Save it as a pdf, attach it to the appeal, and a comment that you have attached a pdf in the comments box.

    You need an index, and sub headings.

    1 No NTK
    2 No evidence of landowner authority
    3 Inadequate signage
    etcetera

    Followed by

    1 NTK
    To date, XX days after the alleged event, no NTK has been receive ...

    2 No evidence of landowner authority.

    I can't see where one point ends and another begins, so I doubt the assessor will be able to either.

    Embed the images of signs instead of links. That way the assessor has to look at tham.
    Last edited by Fruitcake; 15-03-2018 at 11:01 AM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • such01
    • By such01 15th Mar 18, 10:57 AM
    • 9 Posts
    • 6 Thanks
    such01
    thanks Fruitcake
    • Coupon-mad
    • By Coupon-mad 16th Mar 18, 12:02 AM
    • 57,301 Posts
    • 70,913 Thanks
    Coupon-mad
    On the 17/01/2018, I, the registered keeper of this vehicle, received a PCN on my windscreen acting as a notice to the driver.
    Urrrrghhh, don't say that. Sounds like the driver is being implied.
    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.

    • such01
    • By such01 21st Mar 18, 2:18 PM
    • 9 Posts
    • 6 Thanks
    such01
    Urrrrghhh, don't say that. Sounds like the driver is being implied.
    Originally posted by Coupon-mad
    ooops......

    That was missed. Anyway RESULT:

    Thank you for submitting your parking charge Appeal to POPLA.

    An Appeal has been opened with the reference xxxx

    First Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

    Yours sincerely

    POPLA Team

    THANKS EVERYONE for your help!
    • Coupon-mad
    • By Coupon-mad 21st Mar 18, 11:55 PM
    • 57,301 Posts
    • 70,913 Thanks
    Coupon-mad
    Yay, always happens v F1rst, they have no spine to stick around!
    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.

Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

1,501Posts Today

6,547Users online

Martin's Twitter
  • It's the start of mini MSE's half term. In order to be the best daddy possible, Im stopping work and going off line? https://t.co/kwjvtd75YU

  • RT @shellsince1982: @MartinSLewis thanx to your email I have just saved myself £222 by taking a SIM only deal for £7.50 a month and keeping?

  • Today's Friday twitter poll: An important question, building on yesterday's important discussions: Which is the best bit of the pizza...

  • Follow Martin