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  • FIRST POST
    • Wonderkamp
    • By Wonderkamp 21st Mar 18, 5:33 PM
    • 8Posts
    • 7Thanks
    Wonderkamp
    Parking Charge Notice on Islington Estate
    • #1
    • 21st Mar 18, 5:33 PM
    Parking Charge Notice on Islington Estate 21st Mar 18 at 5:33 PM
    Hi all,


    Currently at Popla stage after contesting with "Wing Parking" initially and then Islington Council. Driver parked the car on an Islington estate one Saturday afternoon. Parking charge notice from Wing parking. Lots of residents just ignore these....


    So I appealed as the keeper - Used the PCN template as per the main site as the ticket was the usual £60 rising to £100 Parking Charge Notice:


    They sent back the usual
    'Your appeal and statement are not “personal” statements directly relevant to yourself. They are merely statements copied and pasted off an internet site'.


    At stage 2 to Islington Council I went with the following:


    I challenge this 'PCN', issued by Wing Parking at the above location, as keeper of the car on these main grounds:

    a). The sum is disproportionate, does not represent a genuine pre-estimate of loss, nor is it a core price term.
    b) The sum is extravagant and unconscionable and cannot be justified.
    c). There is no evidence that Wing Parking have any interest in the land.

    d). The Wing Parking 'Notice' fails to comply with the POFA so there can be no keeper liability.
    e). I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract to pay this charge, which is a penalty.

    Formal challenge
    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 or cancel the charge. I will only appeal further if you offer POPLA, the only independent ADR with a scrutiny panel and trained Assessors. The 'IAS' offered by IPC firms will not be used, for well-documented reasons.

    Breach of CCRs
    I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered nor expressly agreed. This 'contract' is cancelled and any obligations now end.

    I have kept proof of submission of this appeal and look forward to your reply.






    This has been rejected by the council/Wing via a very cut and paste looking PDF sent via email. Therefore I am now at Popla.
    Do I continue with the same appeal and what's the chances of success?


    Many thanks!!
Page 1
    • Redx
    • By Redx 21st Mar 18, 5:36 PM
    • 18,413 Posts
    • 23,331 Thanks
    Redx
    • #2
    • 21st Mar 18, 5:36 PM
    • #2
    • 21st Mar 18, 5:36 PM
    a) and b) cannot succeed since the BEAVIS case 2 years ago

    so study post #3 of the NEWBIES FAQ sticky thread and draft a decent popla appeal, then post the draft on here for comments

    leave out the popla ref and pcn ref etc for now, just copy and paste the text of the popla appeal

    ps:- this appears to be an ALMO case
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 21st Mar 18, 5:42 PM
    • 59,419 Posts
    • 72,569 Thanks
    Coupon-mad
    • #3
    • 21st Mar 18, 5:42 PM
    • #3
    • 21st Mar 18, 5:42 PM
    Therefore I am now at Popla.
    Do I continue with the same appeal and what's the chances of success?
    Originally posted by Wonderkamp
    100% success at POPLA guaranteed, by using the usual template points with this one first:

    The Wing Parking 'Notice' fails to comply with the POFA so there can be no keeper liability.
    Explain how it fails to include the keeper liability warning from either 9(2)f or 8(2)f of Schedule 4.

    ...and then a point that tells POPLA that this land is under 'statutory control' and is therefore 'not relevant land' as defined in the POFA, therefore the Act does not apply on this land and only the driver could be held liable.

    ...then the point 'the appellant has not been shown to be the individual liable'

    ...then 'no landowner authority

    ...then 'unclear signs', the long one!

    (the last 3 are template POPLA points from post #3 of the NEWBIES thread).

    Show us what you put together so we can check; it is like putting bricks in a wall.
    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.

    • beamerguy
    • By beamerguy 21st Mar 18, 6:19 PM
    • 7,768 Posts
    • 10,346 Thanks
    beamerguy
    • #4
    • 21st Mar 18, 6:19 PM
    • #4
    • 21st Mar 18, 6:19 PM
    They sent back the usual
    'Your appeal and statement are not “personal” statements directly relevant to yourself. They are merely statements copied and pasted off an internet site'.


    Did WING really say that ?? SO WHAT ??
    What a bunch of plonkers Rodney

    These parking cowboys are coming out with
    stupid things of late.

    "on the day, the keeper was wearing blue underwear"

    Is that personal enough ???
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • The Deep
    • By The Deep 21st Mar 18, 7:54 PM
    • 9,690 Posts
    • 9,525 Thanks
    The Deep
    • #5
    • 21st Mar 18, 7:54 PM
    • #5
    • 21st Mar 18, 7:54 PM
    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    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 lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    Hospital car parks and residential complex tickets have been especially mentioned.

    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 never know how far you can go until you go too far.
    • Wonderkamp
    • By Wonderkamp 22nd Mar 18, 5:18 PM
    • 8 Posts
    • 7 Thanks
    Wonderkamp
    • #6
    • 22nd Mar 18, 5:18 PM
    • #6
    • 22nd Mar 18, 5:18 PM
    Thanks all for your amazing help. Here is my first stab at Popla




    PCN Ref XXXX
    POPLA REF XXXX




    As a registered keeper, I am writing to you to appeal against the above PCN for the following reasons.


    • A compliant Notice to Keeper was never served
    • The Appellant has not been shown to be the individual liable
    • No evidence of landowner authority
    • The signs in this car park are not prominent


    The Wing parking !!!8220;notice!!!8221; which was issued on the vehicle fails to comply with the Protection of Freedom Act 2012, specifically the no keeper liability warning as specified in Schedule 4:


    8 (2)f - warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given!!!8212;


    (i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;


    and


    9 (2)f - warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given!!!8212;


    (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;





    Please note also the land is question is under 'statutory control' and is therefore 'not relevant land' as defined in the POFA. Consequently the Act does not apply on this land and as such only the driver could be held liable.


    As listed above here are further grounds for appeal in more detail.




    • 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 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. 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 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.

      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.''


    • 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

      I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

      ''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

      Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having 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 £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

      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:

      Pic

      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:

      Blogspot

      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:

      Signs

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

      Signs

      ''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:

      Ebay
      ''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 look forward to hearing your response


    Yours faithfully





    • Coupon-mad
    • By Coupon-mad 23rd Mar 18, 1:28 AM
    • 59,419 Posts
    • 72,569 Thanks
    Coupon-mad
    • #7
    • 23rd Mar 18, 1:28 AM
    • #7
    • 23rd Mar 18, 1:28 AM
    Looks OK to me although normally it might be better to isolate 'not relevant land' as the first appeal point and make it more detailed. Quote from the POFA about that term.

    Oh, and don't quote both para 8 and 9 of the POFA. One or the other, only one applies and we will ask you to read those paragraphs and tell us which one applies to your PCN.
    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.

    • Wonderkamp
    • By Wonderkamp 23rd Mar 18, 3:05 PM
    • 8 Posts
    • 7 Thanks
    Wonderkamp
    • #8
    • 23rd Mar 18, 3:05 PM
    • #8
    • 23rd Mar 18, 3:05 PM
    I have uploaded a pic of the PCN as I am not sure as to which paragraph (either 8 or 9) applies regarding POFA


    hxxp://i67.tinypic.com/1jn2x0.jpg


    Thanks again
    • KeithP
    • By KeithP 23rd Mar 18, 3:50 PM
    • 7,991 Posts
    • 7,848 Thanks
    KeithP
    • #9
    • 23rd Mar 18, 3:50 PM
    • #9
    • 23rd Mar 18, 3:50 PM
    I have uploaded a pic of the PCN as I am not sure as to which paragraph (either 8 or 9) applies regarding POFA

    http://tinypic.com/view.php?pic=1jn2x0&s=9#.WrUhPtWWSUk
    Originally posted by Wonderkamp
    Then you need to read both paragraph 8 and 9 of Schedule 4 of PoFA.

    There's a link to Schedule 4 of PoFA in the NEWBIES FAQ sticky thread.

    Read those paragraphs and decide which one applies to you.
    .
    • Coupon-mad
    • By Coupon-mad 24th Mar 18, 2:00 AM
    • 59,419 Posts
    • 72,569 Thanks
    Coupon-mad
    That's why I said:

    we will ask you to read those paragraphs and tell us which one applies to your PCN.
    Because it is easy, when you read the two paragraphs, and it defeats the object if we spoon feed the obvious stuff. It's one or the other and we aren't talking about any clever legalese terms.
    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.

    • Wonderkamp
    • By Wonderkamp 4th Apr 18, 5:42 PM
    • 8 Posts
    • 7 Thanks
    Wonderkamp
    Ah - thanks all. I get you now! Paragraph 8 only.
    About to submit to below to popla. Fingers cross all ok...

    PCN Ref XXXX
    POPLA REF XXXX




    As a registered keeper, I am writing to you to appeal against the above PCN for the following reasons.


    A compliant Notice to Keeper was never served
    The Appellant has not been shown to be the individual liable
    No evidence of landowner authority
    The signs in this car park are not prominent


    The Wing parking !!!8220;notice!!!8221; which was issued on the vehicle fails to comply with the Protection of Freedom Act 2012, specifically the no keeper liability warning as specified in Schedule 4:


    8 (2)f - warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given!!!8212;


    (i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;


    and


    9 (2)f - warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given!!!8212;


    (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;





    Please note also the land is question is under 'statutory control' and is therefore 'not relevant land' as defined in the POFA. Consequently the Act does not apply on this land and as such only the driver could be held liable.


    As listed above here are further grounds for appeal in more detail.




    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 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. 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 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.

    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.''

    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

    I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

    ''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

    Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having 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 £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

    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:

    Pic

    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:

    Blogspot

    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:

    Signs

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

    Signs

    ''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:

    Ebay
    ''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 look forward to hearing your response
    • KeithP
    • By KeithP 4th Apr 18, 5:49 PM
    • 7,991 Posts
    • 7,848 Thanks
    KeithP
    But still you quote both paras 8 and 9 of PoFA.

    Re-read post #7.
    .
    • Fruitcake
    • By Fruitcake 4th Apr 18, 5:52 PM
    • 36,997 Posts
    • 83,601 Thanks
    Fruitcake
    Number the headings, and number the corresponding sections.
    Make not relevant land a separate point, and put it as point 1.
    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
    • Wonderkamp
    • By Wonderkamp 16th Apr 18, 12:22 PM
    • 8 Posts
    • 7 Thanks
    Wonderkamp
    Thanks all so much for your help - you lot are brilliant!


    Email from Popla saying Wing were not contesting the appeal so I don't have to pay the "fine". I'll stick the result in the POPLA thread.


    Thanks again all. Many many thanks!
    • Coupon-mad
    • By Coupon-mad 16th Apr 18, 12:42 PM
    • 59,419 Posts
    • 72,569 Thanks
    Coupon-mad
    Yay! Well done!

    Easy when you know how, isn't it, against certain PPCs?!

    Life is all about learning and to a certain extent, also about dodging scams and idiots out to get you!

    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.

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