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  • FIRST POST
    • betman
    • By betman 5th Jun 18, 11:01 PM
    • 151Posts
    • 221Thanks
    betman
    PCN Park Watch Antelope Park Southampton
    • #1
    • 5th Jun 18, 11:01 PM
    PCN Park Watch Antelope Park Southampton 5th Jun 18 at 11:01 PM
    Hello fellow MSE members
    Event:
    Driver was experiencing cut out of engine due to oil leak. Parked on Antelope Park Southampton to visit The range where in 2017 he had parked before .Parked here rather than car park in case the AA were needed for easy access. It appears late 2017 new restrictions were introduced on this road. Driver parked in Gavan Street in a marked white line bay no Yellow lines, no wording on the ground such as a !!!8220;P!!!8221; to determine permit holders only. No visible signage from drivers seat as sign was five bays back parallel to Road. No signage facing driver along the Road of entry. Driver entered car length of Lidl loading bay and reversed back past double Yellow lines into first bay. Engine cut out and failed to start so was imobilised at this point. Driver had observed upon entering Antelope Park the Parking Eye car park T&C which were clearly visible. Also in the car park driver observed signage that advised and stated PE managed the car park.
    Weeks later received PCN from Park Watch with 2 images of car plate and windscreen two white lines show this to be a road. They state " Parked in a manner whereby the driver became liable for a PC at Antelope Park that we are authorised to manage ( conflicting as PE say they do so who does ). The terms and conditions of parking on this private land are clearly set out on the signage installed within the car park. by parking within this car park the driver is bound to these terms and conditions and liable to pay a charge if they breach these terms and conditions".
    The PCN should say parked in Gavan Street. They claim driver is bound by terms in car park which have been followed surely this is contradictory and confusing. Please could the experts look over my appeal to Park Watch Many Thanks.
    Last edited by betman; 06-06-2018 at 11:06 AM. Reason: privacy
Page 2
    • betman
    • By betman 6th Jun 18, 12:49 PM
    • 151 Posts
    • 221 Thanks
    betman
    The images are goine as well.
    Originally posted by nosferatu1001
    What does the word goine mean please?
    • KeithP
    • By KeithP 6th Jun 18, 12:57 PM
    • 8,579 Posts
    • 8,445 Thanks
    KeithP
    What does the word goine mean please?
    Originally posted by betman
    Surely you can work out that typo - gone.

    Look back at your posts. No-one can see the images you have linked to.
    .
    • The Deep
    • By The Deep 6th Jun 18, 5:58 PM
    • 9,964 Posts
    • 9,752 Thanks
    The Deep
    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 they will be out of business by Christmas.
    You never know how far you can go until you go too far.
    • KeithP
    • By KeithP 6th Jun 18, 6:00 PM
    • 8,579 Posts
    • 8,445 Thanks
    KeithP
    Have you sent your initial appeal yet?

    Not the one you have posted above, but the blue text appeal in post #1 of the NEWBIES FAQ sticky thread.
    .
    • betman
    • By betman 6th Jun 18, 6:02 PM
    • 151 Posts
    • 221 Thanks
    betman
    This is my first appeal to PW. I have cut it down.I will attach the above image. Some may feel it is still too long but I wish to give the relevant facts. Is there anything missing that you guys can think of please. Many thanks for all your kind help
    Dear Sir/Madam,
    Re PCN number: xxxxxxxx
    I appeal and dispute your purported 'parking charge', as the keeper of the vehicle. I deny liability and consider the PCN pure intimidation.
    As the keeper of the car I have obtained the facts from the driver on the day. The driver was experiencing a cut out of the engine due to an oil leak or an electrical fault. In the interests of safety the driver came off the main highway and safely positioned the vehicle on Antelope Park Southampton to visit The Range for oil and to seek a garages advice where in 2017 he/she had parked before. The driver stopped here rather than the car park for the AA to have easy access as a courtesy to other users of the site.
    It appears that late 2017 new restrictions were introduced on this Road. The driver stopped in Gavan Street in a marked White line bay displaying no Yellow lines, no wording on the ground such as a “P” or zig zags to identify this was permit holders only bay. No visible signage on the drivers nearside can be seen from drivers seat. No signage facing the driver along the Road of entry. The driver had observed upon entering Antelope Park the various Parking Eye car park T&C signage which were clearly visible and understandable. Also later in the car park the driver confirmed and observed signage that advised and stated PE managed the site and there was Three hours Max.
    You now state in your PCN " Parked in a manner whereby the driver became liable for a Parking Charge at Antelope Park that we are authorised to manage ( conflicting as PE say they manage so who does.... this is not made clear to patrons ). The terms and conditions of parking on this private land are clearly set out on the signage installed within the car park".
    I myself have visited the site in question to investigate the said car park as referred to in your PCN that you claim you are authorised to manage ( first sentence ) and have examined the facts to present to you and any legal representation that I should appoint at £250 per hour excluding costs etc which I shall be claiming as reimbursement should this PCN not be cancelled and proceed to court.
    I have observed the stopped view from the drivers seat of a car and cannot see any visible signs on the nearside of the road at the side of a car or in front of me on the corner where you would reasonably expect a sign of this importance to be positioned namely at the entrance of the Road. Furthermore on the approach there are no signs evident on the left hand corner to advise of private parking.
    I returned to the position where the driver would have stopped bay One and went and entered the car park where in your PCN notice you state sentence 2 “The terms and conditions of parking on this private land are clearly set out on the signage installed "within the car park.” I have duly walked the full length and breadth of the car park and do not find the signs of yours you state are present at which this contract breach is based upon, only the clear signs of Parking Eye. Should this reach court stage my legal team will require you to show and prove on the day of question your signage was installed within the car park which are the terms you have stated in your PCN that the driver breached and why this PCN has been issued.
    Gavan Street is NOT a car park just a no through road with bays and is separate fenced off by barriers from the car park at a different height. I therefore reasonably consider that the contract the driver would be entering into is that of three hours as displayed in the car park not your conflicting terms.
    Even more conflicting is one of your signs on one side of a post facing one direction that on the other side is covered and hidden by a larger Parking Eye sign. This is conflicting as only one regulation can be in force!!!
    There will be no admissions as to who was driving and no assumptions can be drawn, nor was there any agreed contract. Your signage terms fail the test of 'large lettering' and prominence of the parking charge, as established in ParkingEye Ltd v Beavis, which is fully distinguished.
    Should you fail to cancel this PCN, I require the following information numbers with your rejection letter. As this is purely a claim under a purported contract, and you have no statutory footing to issue penalties, I wish to make you aware of the following details and require the specific information so that I can assess the validity of your claim:



    1. Who is the party that contracted with Park Watch Ltd for the provision of their services at the site of the alleged to have taken place in Antelope Park?
    2. What is the full legal identity of the landowner?
    3. If the charge is based on damages for breach of contract, please provide justification of this sum.
    4. Please provide dated photos of the signs on site, which you state formed a contract also photos of the signage installed as you state are within the car park that I am alleged to have breached.
    5. Please provide all images taken of this vehicle on that day, at the material location.
    6. The signs in this road are inadequate, not prominent, clear or legible from all parking spaces, wrongly positioned and there is insufficient notice of the sum of the parking charge itself.
    6b Why there is conflicting signage including one of each company stating to control the parking on One post.
    7. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
    In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
    The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge.
    8. 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.
    9. This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates. Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.
    Park Watch have failed to fulfill the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-
    ’’The notice must be given by:
    (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
    (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
    The applicable section here is (b) because the NTK was delivered by post. Furthermore,
    paragraph 9(5) states:
    ’’The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’’
    The NTK sent to myself as Registered Keeper arrived some 17 days after the alleged
    event. Even if they had posted it on the same day that they describe as the ‘Date Issued’
    it would be impossible for the notice to have been actually delivered and deemed ‘served’
    or given, within the 'relevant period' as required under paragraph 9(4)(b). This means that you have failed to act in time for keeper liability to apply.
    I have kept proof of submission of this appeal and will also be making a formal complaint about your predatory and aggressive conduct to your client landowner, and retailers as well as complaining in writing to my MP.
    Attached is an image confirming details of lack of signage. Other images can be provided as evidence.
    Yours faithfully
    xxxx xxxxxxxxxxxxxx
    Keeper of the car
    • KeithP
    • By KeithP 6th Jun 18, 6:11 PM
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    KeithP
    Frankly Betman, that is a waste of effort.

    The PPC won't bother to read all that.

    You do understand don't you, that most first appeals get rejected?
    You are only going through the motions to get a PoPLA code.

    If you were to use the blue text appeal from the NEWBIES thread, there is a chance that the PPC will recognise it as coming from MSE and realise they will have a fight on their hands. That in itself may be enough for them to cancel the charge.

    My suggestion is to send the blue text appeal. Send it unchanged. Send it as the keeper.
    .
    • betman
    • By betman 6th Jun 18, 11:37 PM
    • 151 Posts
    • 221 Thanks
    betman
    Keith,


    I have sent the blue text template with a few other lines of key points but nowhere as long as before with the last version I posted and certainly far shorter than my first effort.


    I have also requested a "read receipt" so I know it's been received and read. I now await their reply then I suppose go to Popla. I note there is a 2000 character limit on their forms which is again unjust if on a lawful basis you can't defend yourself because of limitations.


    May I thank you for your patience and understanding. Your time and kind help has been very much appreciated. Also that of Coupon Mad. Betman
    • Umkomaas
    • By Umkomaas 7th Jun 18, 9:57 AM
    • 18,842 Posts
    • 29,660 Thanks
    Umkomaas
    I now await their reply then I suppose go to Popla. I note there is a 2000 character limit on their forms which is again unjust if on a lawful basis you can't defend yourself because of limitations.
    POPLA appeals can be as detailed as you wish - just save your appeal document as a pdf file, then attach it to the appeal portal, then press the 'Submit' (or whatever it's called) button.

    A rebuttal of the PPC's evidence (which you get a couple of weeks after you put in your POPLA appeal) is limited to 2,000 characters, then you have to be smarter with your input.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • betman
    • By betman 21st Jun 18, 6:57 PM
    • 151 Posts
    • 221 Thanks
    betman
    Again can I firstly thank Keith, Coupon Mad and others for the invaluable help you provide. Having redrafted this so many times over countless days I know it so well, you guys must know the main points inside out !!!.


    Having sent the template Blue print 1st appeal to the PCC as Keith suggested it has been refused by email not letter as requested. They cite for not displaying an authorised permit.


    I have now finally compiled this draft to send to POPLA. Please note there are gaps for insertion of images which I can post on here later if appropriate at the final draft. Spacing and spelling will be checked so it is presented professionally.


    Questions please:

    1. As I have received in the post the NTK and have unsuccessfully appealed. Do I send to POPLA straight away or is there advantage in delaying please. I have till July 2018 to appeal


    2. Is there anything I have missed or misquoted etc


    3. Is there anything I have put that may alienate or harm my appeal


    4. On the PCN the two colour images of the vehicle are orange date stamped with time and date but not length of time stayed in the permit parking bay. Is this worth mentioning ref 10 minute grace period or can the photographer claim they waited 10 minutes before recording.

    Hopefully I have put enough appeal points across and I thank you very much indeed for taking the time to read the appeal and make your comments.



    BM


    Draft to follow:
    Last edited by betman; 21-06-2018 at 7:44 PM. Reason: spaces
    • betman
    • By betman 21st Jun 18, 7:15 PM
    • 151 Posts
    • 221 Thanks
    betman
    Dear POPLA Adjudicator



    APPEAL RE: PPC. PARK WATCH CHARGE NO PERMIT / xxxxxx, Antelope Park Southampton
    CAR PARK , VEHICLE REG: xxxxxxxxx
    POPLA verification Ref: xxxxxxxxxx



    I, the registered Keeper of the above vehicle am appealing against the above charge received via a letter acting as a notice to the registered keeper received xxxxxxx. My appeal to the operator was submitted and subsequently rejected via an email dated xxxxxxx. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.



    1.Misleading and forbidding signage; non-compliance with the British Parking Association Code of Practice; parking conditions not clear; no clear offer made.



    2.The signs in this road are not prominent, clear or legible from all parking spaces and are insufficient, and not effectively spaced.



    3. 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.



    4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. No standing or authority to pursue charges nor form contracts with drivers.



    5. This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates. Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.









    Facts of events:



    As the keeper of the car I have obtained the facts from the driver on the day. The driver was experiencing a cut out of the engine due to an oil leak or an electrical fault. In the interests of safety the driver came off the main highway and safely positioned the vehicle on Antelope Park Southampton to visit The Range for oil and to seek a garages advice where in 2017 he/she had parked before. The driver stopped here rather than the car park for the AA to have easy access as a courtesy to other users of the site.


    It now appears that late 2017 new restrictions were introduced on this Road. The driver stopped in Gavan Street in a marked White line bay displaying no Yellow lines, no wording on the ground such as a !!!8220;P!!!8221; or zig zags to identify this was permit holders only bay. No visible signage on the drivers nearside can be seen from drivers seat as a sign was five bays back parallel facing to the Road. No signage facing the driver along the Road of entry.


    Driver entered by a car length of the Lidl loading bay and reversed back past double Yellow lines into the first bay. The engine again cut out and failed to start so it was then broken down and immobilised at this point so not technically parked.


    The driver had observed upon entering Antelope Park the various Parking Eye car park T&C signage which were clearly visible and understandable that parking was stated free for 3 Hours.. Also later in the car park the driver confirmed and at closer inspection observed signage that advised and stated Parking Eye managed the site of Antelope Park.


    Park Watch now state in their PCN " Parked in a manner whereby the driver became liable for a Parking Charge at Antelope Park that we are authorised to manage ( conflicting as Parking Eye signage say they manage... so who does.... this is not made clear and is ambiguous ). Park Watch also state in their PCN !!!8220;The terms and conditions of parking on this private land are clearly set out on the signage installed within the car park".




    Investigation by myself Keeper of Vehicle

    I myself have visited the site in question to fully investigate the said car park as referred to in the PCN that Park Watch claim they are authorised to manage ( first sentence ) and have examined the facts to present to you.


    Entering Antelope Park from Bursledon Road you enter into Gavan Street no signage at entry ( doc 1/2/3 ).












    As you progress round the Road the first signage from a drivers seat view you notice is that of Parking Eye on the nearside who advise " 3 hour max stay for use by customers only. This car park is private property see signage in car park for terms and conditions" and that they are authorised to manage the parking in Antelope Park.( docs 4/5 )



    Therefore,at this stage of entering it is not unreasonable as there was no mention of Park Watch or any other signage or indication of Park Watch for the driver to assume this to be the case and for this to be the terms and conditions of the site Antelope Park. I would reasonably expect to see signage to the effect that other parking restrictions also are in force on Antelope Parks site for a legal contract to be entered into. Other than this the signage at Antelope Park is contradictory and ambiguous.



    As you continue around the road on the left there is a sign that a driver could not read under the highway code regulations of being safely in control of a motor vehicle as their eyes would be concentrating on the road straight ahead and looking at traffic coming towards them.( doc 6/7 /8)



    This said sign is an unreadable sign at distance at the left to an entrance of a building which one would reasonably assume by it's position and angle relates to the entering of that property Ceram Tec due to its positioning and not to have any relationship by it's position with the Road you are on namely Gavan Street.


    The Road continues, there still have been no signs facing the driver s view to advise this is a permit zone ( doc 9 )








    At the end of the Road the driver did not turn left but went briefly into the approach road of Lidl's goods entrance straight ahead.( doc 10 )







    When reversing back into the first bay on the corner past double yellow road line markings it was noticed on the day in question that several cars were stopped in the road in painted white line bays. A lorry was on the left stopped. There are no markings in these bays to advise this is permit only by the way of zig zags, a !!!8220;P!!!8221; or anything else to distinguish the bays from normal parking spaces which could lend one to think this could be to source revenue by entrapment. ( doc 11 )



    I have observed the stopped view from the drivers seat of a car and cannot see any visible signs on the nearside of this side of the road at the side of a car or in front of me on the corner where you would reasonably expect a sign of this importance to be positioned namely at the entrance of the Road. Furthermore on the approach there are no signs evident on the left hand corner to advise of private parking.( docs 12/13/14/15) Note for legal clarity I do not own the silver car or have driven it into the position it merely is used to show where the driver on the day was stopped.The male is not me or known to me.



    Clearly from the above four images above it can be demonstrated the complete total lack of any signage for a driver to enter into a contract.




    I now submit evidence of what you the driver would see from your parked position. You see no Park Watch signage in front of you or at the side. Note. From the drivers account they remember what they can recall a large lorry on the other side of the Road in the HGV bay but for this I could only show without it. ( doc 16/17 )




    Again this proves no signage from all angles that you have now seen.




    I then purposely went up the road which you would not normally do as you would go in a forward opposite direction from your vehicle, l carefully looked hard ... nothing and then walked up the road more for a distance of approx 75 feet. There I at last finally found tucked away and found hidden on the left side of this Road signs parallel facing outwards to the road at a base height of seven foot from the ground. An average height person of 5 foot 6!!!8221; would not be tall enough to read this.



    The small sign did not stand out, completely blended in with the background and was difficult to read and was confusing with another larger sign on top of it and further signs in the background.( doc 18 )



    I returned to the position where the driver would have stopped in bay One and went and entered the car park where in the PCN notice, quote sentence 2 clearly states !!!8220;The terms and conditions of parking on this private land are clearly set out on the signage installed within the car park.!!!8221;


    I have duly walked the full length and breadth of the car park fore mentioned and do not find the signs of Park Watch that are stated are present nor any terms and conditions at which this contract breach is based upon, only the clear signs of Parking Eye.( doc 19 )








    Should this reach court stage my appointed legal solicitor will require signage confirmation to show and prove on the day of question the Park Watch signage was installed within the car park which are the terms Park Watch are stating in the PCN have been breached and is the contract. This is not true there are no signs of the terms present at the location claimed ( Car Park ) for the terms to have been breached and therefore no contract could have been entered.




    To confirm Gavan Street is NOT a car park just a single lane, no through road with bays and is separate and fenced off by barriers from the car park at a different height. I therefore reasonably consider that the contract the driver would have been entering into is that of three hours as displayed in the car park where it is claimed to form the contract by Park Watch.


    I would agree therefore with the driver that he/she was at the time under the same understanding as me and therefore was not aware of the contract and thus could not be entering into said contract. To be clear I asked members of the public where the car park was? All of them looked at me puzzled and pointed to the row of cars in the car park..NOT Gavan Street.




    Even more conflicting is a standard small Park Watch sign on one side of a post facing one direction that on the other side is covered and blanked out by a larger Parking Eye sign. This is very conflicting as only one regulation can be in force!!! by one company and I would question its legality as to which you would comply and form a contract with. ( doc 20/21 )



    In my appeal to Park Watch as the registered keeper I made a Formal Note; Service of any rejection letter/POPLA code and/or any legal documents by email is expressly disallowed. All responses to me from this point forward must be made by the Royal Mail postal service. Regardless of any MCOL online system, in this case, service of any court claim must only be made by first class post to me. This was completely and blatantly ignored.




    Also completely ignored on what one may only determine as being a stock automatic template reply without assessing any individual circumstances of mitigation or providing reasonable requests and answers to questions to defend the notice were as follows:


    !!!8220;Should you fail to cancel this PCN, I require the following information with your rejection letter:
    1. Provide all images taken of this vehicle on that day and the signs at the material location and do not withhold any images or data later relied on for POPLA or court.

    2. Explain why you operate in disregard of the GDPR and ICO rules. Nowhere do you inform the public of their right to subject access - why not?Dear Sir/Madam,

    3. Who is the party that contracted with Park Watch Ltd for the provision of their services at the site of the alleged to have taken place in Antelope Park?

    4. What is the full legal identity of the landowner?

    5. If the charge is based on damages for breach of contract, please provide justification of this sum.

    6. Please provide dated photos of the signs on site, which you state formed a contract also photos of the sign-age installed as you state are within the car park that I am alleged to have breached.

    7. The signs in this road are inadequate, not prominent, clear or legible from all parking spaces, wrongly positioned and there is insufficient notice of the sum of the parking charge itself.

    7b Why there is conflicting signage including one of each company stating to control the parking on One post.

    8The 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.

    I have not received answers or clarity on these points which still need addressing.
    Last edited by betman; 21-06-2018 at 7:43 PM. Reason: paragraphs
    • betman
    • By betman 21st Jun 18, 7:24 PM
    • 151 Posts
    • 221 Thanks
    betman
    Justifiable Grounds for appeal


    1.Misleading and forbidding signage; non-compliance with the British Parking Association Code of Practice; parking conditions not clear; no clear offer made.Infisicent and unclear signs


    Schedule 4 to the Protection of Freedoms Act 2012 and the BPA AOS Code of Practice version 7 discuss the clarity needed to make drivers aware of a parking charge.



    Additionally, consumer contract law demands clarity and transparency in the making of an offer.


    In particular the BPA AOS Code of Practice version 7, section 18, lays down guidance for signage including the need for entrance signs at the entrance to the parking area and specific parking terms signage, which should be placed 'throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle' and which should be 'easy to see, read and understand'. These are reasonable standards to apply when making an assessment as appellant of the clarity, usefulness and visibility signage in place at the location.




    In this case, there is no entrance signs as you enter onto Gavin Street, Found small signage is at such a position that it is unreadable when entering the road and from the car when parking, A clear breach of BPA AOS 18.3


    The use of lines on the ground and other markings to give drivers instructions must also be considered signage and so, under the BPA AOS Code of Practice should also be " conspicuous". Photographic evidence attached shows this is not the case.


    2.The signs in this road are not prominent, clear or legible from all parking spaces and are insufficient, and not effectively spaced.

    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 would not be entered into by any average person 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


    http://imgur.com/a/AkMCN


    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:


    http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI
    /AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg


    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 small in size, 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 .


    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 as there is not one on the nearside on the same side of the road on this corner.


    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
    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm


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


    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx


    ''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:


    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html


    ''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:


    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html


    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.


    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 area and the signs were not adjacent to the car and could not have been seen and read from a driver's seat before parking.



    The operator advises in the PCN that there is signage of the terms for where the driver parked in the car park ( note Gavan Street is not classed as a car park ) This is not true as there are no signs in the car park only that of Parking Eye.

    3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received.



    No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4.



    This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.




    The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.


    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.''
    Last edited by betman; 21-06-2018 at 7:46 PM. Reason: full stop
    • betman
    • By betman 21st Jun 18, 7:28 PM
    • 151 Posts
    • 221 Thanks
    betman
    4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. No standing or authority to pursue charges nor form contracts with drivers.

    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

    5. This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates. Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.

    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.


    Park Watch have failed to fulfill the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-


    !!!8217;!!!8217;The notice must be given by!!!8212;


    (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or


    (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.!!!8217;!!!8217;


    The applicable section here is (b) because the NTK was delivered by post.


    Furthermore,
    paragraph 9(5) states:


    !!!8217;!!!8217;The relevant period...
    is the period of 14 days beginning with the day after that on which the specified period of parking ended!!!8217;!!!8217;


    The NTK sent to myself as Registered Keeper arrived and was delivered into my letterbox some 17 days after the alleged incident .
    xxxxxxx alleged infringement. xxxxx Notice Issue date. Received xxxxxx. Read by myself at xxxx


    The alleged infringement occurred on xxxx and from my understanding the NTK was required to reach me by a period of 14 days. It did not.


    Therefore failing to comply within the 'relevant period' as required under paragraph 9(4)(b). This means that Park Watch have failed to act in time for keeper liability to apply, therefore, there is no keeper liability possible.



    As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times that a parking charge with no NTK cannot be enforced against the registered keeper.

    Schedule 4 of POFA 2012 which applies in England/Wales
    http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
    Last edited by betman; 21-06-2018 at 7:36 PM. Reason: clarity
    • betman
    • By betman 21st Jun 18, 7:32 PM
    • 151 Posts
    • 221 Thanks
    betman
    PARK WATCH RESPONSE TO APPEAL, REPLY DATED 13th JUNE 2018

    Park Watch are themselves are in conflict with what Gavan Street is!!! The PCN refers to it as and states car park, The refusal Email now states service area.


    Therefore, as confirmed in the refusal letter this is a service area and that Park Watch state clearly in the original PCN that the signage terms to be complied with are within the car park not the service area.... this is not possible to form the contract as there are no signs of Park Watch or their terms in that location as stated.


    Park Watch have stated “Where you have parked your vehicle”. This incriminating accusation is not accurate and cannot be the case as I am the registered keeper and not the driver which had my appeal letter had been read with careful consideration, accuracy and respect this would have been noted and digested as I clearly stated such. They should state .... Where the driver had parked.




    My appeal to Park Watch and it's subsequent administration process is flawed also in that it appears to have either remained unread, and/or simply a generic template response was sent out which fails to adequately address all the points and questions raised in my appeal.



    Or it is unable to provide answers to these questions put to them due to lack of evidence. Their inadequate response naturally has a negative impact upon my appeal because without their clarification of these points I am unable to provide counter-evidence to dispute or disprove their responses and as such feel that they have failed to provide any evidence to the answer of those questions, and can only presume this is because they are unable to provide evidence and so have instead chosen to ignore these questions.


    Furthermore, adding strength to the charge of this being a template reply is the utter disregard of a formal notice request in my letter of appeal being completely ignored for correspondence to be posted.

    IN CONCLUSION.

    I am more than comfortable and capable to attend legal proceedings at a court of law where I have professional experience of procedures.


    I will not be intimidated or harassed and will appoint representation of a solicitor experienced in contractual law. I trust that at this stage with yourselves concerning this PCN and by highlighting previous examples of POPLA decisions and legal court outcomes of the same circumstances that have been upheld and duly cancelled this PCN will also be cancelled having the same merits.


    The courts take a dim view of these cases wasting time and Parliament currently recognises this and is acting as soon as possible to introduce new legislation ( Re statement Rishi Sunak MP )


    Court proceedings will incur large fees for both parties and I give notice that I shall apply for full costs to be awarded to me for my legal representation, research, time and other related expenses that shall be fully detailed on disputing this but not be limited to.


    I reserve the right to refer to this appeal letter and it's contents should this matter proceed to court


    I will also advise at this time that should Park Watch transfer my personal details to other agencies such as debt recovery companies this will be taken as misuse of the data obtained from the DVLA and will be reported accordingly to both the DVLA and the Information Commissioner's Office (ICO )


    DVLA Statement

    The DVLA has issued a statement to the Trade Associations on the matter of Debt Assignment

    You will be aware that DVLA has been considering whether to permit private parking companies passing on DVLA vehicle keeper data to third parties as part of the assignment of unpaid alleged private parking charges. The term used in this context to describe this activity is "debt assignment."

    The KADOE contract does not provide for the onward disclosure of vehicle keeper data by parking companies for debt assignment, and any proposals to do so require the parking company to seek written authorisation from DVLA. However, following representations from the sector, DVLA agreed to consider its position further.

    I can now advise that the Agency has concluded that it will not be changing its position on this matter. As was the case with previous requests from parking companies, DVLA will not allow vehicle keeper data originating from DVLA records to be provided to third parties as part of a debt assignment arrangement.



    The Agency will consider disclosure of data obtained from DVLA to third parties as part of a debt assignment arrangement as a breach of contract which could result in suspension.

    That is the end of my appeal.

    Finally, May I thank you, The Adjudicator for your kind assistance with this matter and trust you to allow the appeal.


    Yours faithfully,
    xx xxxxxx
    KEEPER
    • Coupon-mad
    • By Coupon-mad 22nd Jun 18, 2:26 AM
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    Coupon-mad
    I saw a typo, ''Gavin Street'' in one of the posts about this POPLA appeal.

    Make sure you embed all your photos into the PDF, so it reads like a story book with pictures in it, not with separate photo uploads for the Assessor to click on.

    And I would remove this because I don't think it helps to tell POPLA that there is a barrier separating the area from the Parking Eye area:
    To confirm Gavan Street is NOT a car park just a single lane, no through road with bays and is separate and fenced off by barriers from the car park at a different height. I therefore reasonably consider that the contract the driver would have been entering into is that of three hours as displayed in the car park where it is claimed to form the contract by Park Watch.
    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.

    • betman
    • By betman 22nd Jun 18, 5:28 PM
    • 151 Posts
    • 221 Thanks
    betman
    Thanks for that Coupon Mad. Typo well noticed and I shall remove that. Yes pics will be inserted at normal size. It bumps the total pages to 29. Good point about the barriers again shall remove.


    Questions please:

    1. As I have received in the post the NTK and have unsuccessfully appealed. Do I send to POPLA straight away or is there advantage in delaying please. I have till July 2018 to appeal


    2. Is there anything I have missed or misquoted etc


    3. Is there anything I have put that may alienate or harm my appeal


    4. On the PCN the two colour images of the vehicle are orange date stamped with time and date but not length of time stayed in the permit parking bay. Is this worth mentioning ref 10 minute grace period or can the photographer claim they waited 10 minutes before recording.


    Other than that does it look good to you CM,


    Many thanks as always ... you are a star !!
    • Coupon-mad
    • By Coupon-mad 22nd Jun 18, 6:37 PM
    • 59,976 Posts
    • 73,134 Thanks
    Coupon-mad
    Looks good to me, but do remove the non-working Signazon and Ebay signage tables links and words around those, they are dud now.

    You can mention grace periods if you mean the photos are taken at the same time, not 10 mins apart. And you can submit this appeal straight away, no need to wait.
    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.

    • Umkomaas
    • By Umkomaas 22nd Jun 18, 7:20 PM
    • 18,842 Posts
    • 29,660 Thanks
    Umkomaas
    Finally, May I thank you, The Adjudicator for your kind assistance with this matter
    I wouldn't be obsequious - this is a business letter, and don't forget that the POPLA assessor is paid by the parking companies - so leave it out, it doesn't do you any favours. Firm and businesslike should be the tone - IMHO!
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • betman
    • By betman 10th Aug 18, 10:35 AM
    • 151 Posts
    • 221 Thanks
    betman
    I had the opportunity to reply to the evidence from the operator which had old signage not current. This was my reply;


    Para2.Statement UNTRUE. There are NOT 11 enforcement signs. 5 including what they refer as an entrance sign ARE NOT on lighting posts which according to BPA COP should be visible/able to read at all times including at night


    Para3 NOT COMPLIED TO. One Sign is obscured by tree branches. Other by HGV


    Para15 The owner has allowed PEye to also undertake management and enforcement of said site. This breaches PW contract terms.PW has not commented on this as they know it is a conflict of interest as only one enforcement can be in place of the site


    Parking Bays state 38. UNTRUE there are 43. The operator has not shown which 38 bays they are contracted to manage


    EV3 NTK As stated in appeal although printed as 24/05/ NTK FAILED TO ARRIVE BY 14 DAY DEADLINE. The operator has not disputed this at appeal/evidence stage, therefore operator failed to act in time for NTK liability to apply


    EV4E Image shown is NOT A SIGN CURRENTLY DISPLAYED AT THE SITE, adjacent to the car or elsewhere. It is date timed falsely at 2018/5/18 10.50. I have images of every sign and NONE have a jubilee clamp ( see bottom left ) Confirmed by my doc 17 showing the nearest sign


    EV5A - EV5E. All these images are NOT TRUE ACCURATE images of 18/05/18 or later. Bushes have no greenery or leaves. Please compare EV5E to my doc 17 same sign. There is no security sign above, background is different. This is a blatant attempt to mislead POPLA and the appeals process by presenting false signage details


    EV6A/B Shows Incorrect number of signs & position of signs
    Entrance sign position FALSELY HIGHLIGHTED POSITION. Correct position is tucked away left Ceram tec entrance see my docs6-8


    Operators reply to appeal states if I chose to use POPLA appeals service the PCN will increase to £100. This is a contravention of the BPA Code which requires no undue influence or coercion. PW HAVE NOT COMPLIED with BPA code


    PW have evaded answering points 2/5/6/7b (crossed out) 8. Ref my appeal letter to them
    • betman
    • By betman 10th Aug 18, 12:06 PM
    • 151 Posts
    • 221 Thanks
    betman
    Unsuccessful
    Assessor Name
    Sophie Taylor
    Assessor summary of operator case



    The operator has issued the Parking Charge Notice (PCN) due to no permit.
    Assessor summary of your case



    The appellant has raised numerous grounds of appeal to POPLA, over a 29 page document. For the purpose of this report, which is intended to be a short summary to review and conclude as to whether the appeal is justified, I have summarised the points into brief statements.
    The appellant states that: • The notice to keeper does not comply with the provisions set out in PoFA 2012. He makes specific references to paragraphs 5, 6, 11 and 12. The appellant says he is not liable as he was not the driver. • The operator has no evidence of landowner authority. • The signage is not prominent, clear or legible from all parking spaces. • The signage is misleading or forbidding. The appellant has provided evidence in support of the appeal.
    Assessor supporting rational for decision



    When entering onto a private car park, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore, upon entry to the car park, it is the duty of the motorist to review the terms and conditions, and comply with them, when deciding to park.

    The operator has provided photographic evidence of the signage that states, “Failure to comply with the following terms and conditions may result in a parking charge… a valid permit must be displayed for inspection at all times… £100 Parking Charge”. The operator has provided photographic evidence of the appellant’s vehicle, parked on site, showing it is not displaying a valid permit. As such, the PCN has been issued.
    The appellant states that the notice to keeper does not comply with the provisions set out in PoFA 2012. He makes specific references to paragraphs 5, 6, 11 and 12. The appellant says he is not liable as he was not the driver. In this case, I cannot see that the driver of the vehicle has been identified at any point in the appeals process. As such, the operator is seeking to pursue the appellant, as the registered keeper of the vehicle.
    PoFA 2012 sets out provisions for an operator to pursue the registered keeper of a vehicle, where the driver has not been identified. As the operator is seeking to pursue the keeper, I have reviewed the notice against the relevant sections of PoFA, and I am satisfied that the operator has complied with the act. As such, the appellant, as the registered keeper is now liable for the charge.
    The appellant states that they do not believe the operator has the authority to pursue charges or form contracts at this car park. Section 7.1 of the BPA Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for.
    In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. In response to this ground of appeal, the operator has provided a license agreement document, confirming that the operator has sufficient authority to pursue charges on the land. Section 22.16B of the BPA Code of Practice advises that POPLA will accept witness statements in place of full landowner agreement contracts.

    The evidence provided in relation to this appeal meets the criteria POPLA requires, and therefore I am satisfied that the operator has sufficient authority at the site on the date of the parking event. The appellant states that the signage is not prominent, clear or legible from all parking spaces, and he says that the signs fail to transparently warn drivers of what the ANPR data will be used for.

    He says that the amount requested is not a genuine pre-estimate of loss. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable.
    It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable.
    Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets.
    The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the British Parking Association Code of Practice.
    Section 18.1 of the British Parking Association Code of Practice states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 continues: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.
    In addition to this, I note that within the 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 independent assessment 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 is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable.
    Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court.

    While I note that the appellant states that they were unaware of the terms and conditions, the driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it.

    It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Reviewing the photographic evidence of the signage on display at the site, I am satisfied that the driver was afforded this opportunity. Upon consideration of the evidence, the driver failed to display a permit, and therefore did not comply with the terms and conditions of the car park.
    The operator has complied with PoFA 2012, and the appellant as the registered keeper is now liable for the charge. As such, I conclude that the PCN has been issued correctly.
    Accordingly, I must refuse this appeal. I must clarify that while I have not gone into specific detail regarding each point made by the appellant, I have considered his points in full before concluding that this appeal is unsuccessful.



    Please can you advise what the next step is. Popla has not commented on the misleading evidence or the fact the NTK failed to arrive within 14 days
    • nosferatu1001
    • By nosferatu1001 10th Aug 18, 1:17 PM
    • 3,066 Posts
    • 3,753 Thanks
    nosferatu1001
    Did you make the specific point that the notice was not deliverd in 14 days. Entirely possible that over 29 pages they lost the will to live and missed that point. Theyve only mentioned reviewing the *notice* and not the *timescales* whcih suggests that.
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