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  • FIRST POST
    • RAS83
    • By RAS83 18th Jul 18, 1:05 PM
    • 27Posts
    • 8Thanks
    RAS83
    Charge whilst broken down
    • #1
    • 18th Jul 18, 1:05 PM
    Charge whilst broken down 18th Jul 18 at 1:05 PM
    Hi all,


    Just a quick question. I have been issued with a parking charge overstaying the time period at a small Esso garage/services. My car battery actually died on the forecourt and I had the AA come out and get me going again.


    I've had a search but not found any relevant posts. Has anyone had any experience of appealing on the grounds of being broken down?? Or does that not make any difference to these parking companies?


    Any advice or pointing to previous relevant posts will be appreciated.


    Thanks.
Page 2
    • RAS83
    • By RAS83 7th Aug 18, 7:51 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    Thank you! I'm confused as to why the links are not included in that?
    • KeithP
    • By KeithP 7th Aug 18, 7:55 PM
    • 11,191 Posts
    • 11,753 Thanks
    KeithP
    They are not there because, like you, the poster has too few posts on MSE to be able to post links.

    The missing 'links' are easily found from post #3 of the NEWBIES FAQ sticky thread.

    In particular, this dropbox file linked from post#3 of the NEWBIES cotains all the links you need:
    https://www.dropbox.com/s/p7ltb9rcr6zy7kn/Appeal_stage2_POPLA_ECP_draft5.pdf?dl=0
    Last edited by KeithP; 07-08-2018 at 8:03 PM.
    .
    • RAS83
    • By RAS83 7th Aug 18, 8:10 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    Ok thank you i have found the links and will include them. Are they being written just as text sufficient?

    So am i right in saying using the following 4 points will be sufficient?
    POPLA Ref <ref>
    Civil Enforcement Parking Charge Notice no <ref>

    A notice to keeper was issued on <date> and received by me, the registered keeper of <reg> for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at <location>. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.


    1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates
    2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

    3) 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

    4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    5) Frustration of contract

    Obviously i will add all of the text which accompanies points 1-4 but I'm struggling to find some wording on frustration of contract and also unsure on how to involve my AA report with it. Would this not imply that i was driving the car as it was my membership?

    Thanks for your help
    • beamerguy
    • By beamerguy 7th Aug 18, 8:46 PM
    • 9,631 Posts
    • 12,701 Thanks
    beamerguy
    So am i right in saying using the following 4 points will be sufficient?
    POPLA


    POPLA have assessors who are clueless and not
    properly trained so you wait to see
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • RAS83
    • By RAS83 9th Aug 18, 1:07 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    Hi all,

    Would anyone know of any legal text in relation of frustration of contract that i can utilise for my POPLA or will it be best to draft it out myself.
    I cant find any common text as per other contesting point.
    The reason i got the ticket is because i couldn't leave the car park so i would like to ensure this point is covered well and use my AA recovery report as the evidence.
    Thanks guys
    • nosferatu1001
    • By nosferatu1001 9th Aug 18, 1:23 PM
    • 4,111 Posts
    • 4,982 Thanks
    nosferatu1001
    Draft it yourself.
    Frustration of contract is a simple concept: if the performance of the contract is obstructed, no sum is due under the contract.
    The vehicle had broken down
    Thus any overstay was not the fault of the driver, and the contract was frustrated.
    No ticket can be issued correctly under this circumstance, as the ticket can only rely upon a breach of contrct. As no contract was in place at the time of the alleged breach, there can be no breach. Evidence of frustration is in the witness statement from an occupant of the vehcle (thats you) and a copy of the AA reciept showing recovery services were used.
    • RAS83
    • By RAS83 16th Aug 18, 3:54 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    Hi all,

    Would just like to check that my AA report will be OK to attach to the POPLA appeal as it appears below?

    (obviously removed personal details for forum use)

    This doesn't indicate that I was driving in anyway so will be OK to use?


    16 August 2018


    Mr Micky Mouose
    1 cheese Road
    London



    Dear Micky Mouse

    Confirmation of Breakdown Assistance

    As requested, please find below details of the breakdown assistance service which was provided under your AA Membership.

    Date Breakdown Assistance provided: XX/XX/XXXX

    Time Breakdown Assistance requested: XX:XX

    Time job completed: XX:XX

    Vehicle attended: XXXXXXXXXXX

    Vehicle registration number: XXXXXXXX

    Nature of breakdown: Battery (Replacement Declined), Battery Unserviceable, Battery Boosted

    Location of breakdown: Esso, A2 Trunk Road, Gravesend, Kent, England, DA12 – Vehicle on Forecourt

    I hope this information will be helpful to you. If you have any queries or questions regarding your AA Membership, or to request a copy of the AA Membership Terms & Conditions, please contact AA Member Care on 0800 435 980, one of our advisors will be happy to help.

    Alternatively, the AA website, www.theaa.com, provides information on AA Membership and all AA products and services.

    Thank you for being a Member of the AA.

    Yours sincerely


    Bob Mackenzie
    Executive Chairman, Automobile Association
    CBA2/MR/MA
    635601 1137795973
    • Umkomaas
    • By Umkomaas 16th Aug 18, 6:01 PM
    • 20,511 Posts
    • 32,422 Thanks
    Umkomaas
    Definitely include it. Be careful not to allow anything to be read into the report that POPLA might use to assume who the driver was. Be sure what you put in your appeal to ensure you are seen as the registered keeper, and you were a mere occupant of the car.

    Note - I've not read right back through the entire thread, so don't know whether the driver has previously been identified.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    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.
    • RAS83
    • By RAS83 21st Aug 18, 7:38 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    Hi all,

    I've nearly run out of time for my POPLA appeal and have to submit it tomorrow. Please could i have feedback on the below before submitting it, especially the frustration of contract point and the AA report.
    Is it fine to include it as it shows? It shows it is my AA membership but as i see it does not indicate i was driving.
    Many thanks for your help

    POPLA Ref …………..
    Civil Enforcement Parking Charge Notice no …………..

    A notice to keeper was issued on …….. and received by me, the registered keeper of vehicle …….. for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at - .................. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons
    1) 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
    2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    3) Frustration of contract
    4) Authenticity of vehicle photographs


    1) 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:

    LINK

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    LINK

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

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

    LINK

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

    LINK

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' 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:

    LINK

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    LINK

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

    2) 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
    3) Frustration of contract:
    The vehicle in question ................ had broken down and
    thus any overstay was not the fault of the driver, and therefore there is a frustration of contract.
    Evidence of frustration of contract is illustrated below in the recovery report from the vehicles AA recovery service.
    Date

    Mr Name
    Address
    Adrdress
    Post code

    Dear Mr Name

    Confirmation of Breakdown Assistance

    As requested, please find below details of the breakdown assistance service which was provided under your AA Membership.

    Date Breakdown Assistance provided: ……….

    Time Breakdown Assistance requested: ……..

    Time job completed: ……..

    Vehicle attended: …………

    Vehicle registration number: …………..

    Nature of breakdown: Battery (Replacement Declined), Battery Unserviceable, Battery Boosted

    Location of breakdown: …………………..

    I hope this information will be helpful to you. If you have any queries or questions regarding your AA Membership, or to request a copy of the AA Membership Terms & Conditions, please contact AA Member Care on 0800 435 980, one of our advisors will be happy to help.

    Alternatively, the AA website, www.theaa.com, provides information on AA Membership and all AA products and services.

    Thank you for being a Member of the AA.

    Yours sincerely


    Bob Mackenzie
    Executive Chairman, Automobile Association
    CBA2/MR/MA
    635601 1137795973


    4) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time staps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper right hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

    I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

    I therefore request that POPLA uphold my appeal and cancel this PCN.
    Last edited by RAS83; 21-08-2018 at 8:26 PM. Reason: included personal information
    • KeithP
    • By KeithP 21st Aug 18, 8:22 PM
    • 11,191 Posts
    • 11,753 Thanks
    KeithP
    Remove your vehicle's registration number from your post above - at the start of point 3).

    I would actually embed an image of that AA letter into your appeal pdf.
    Last edited by KeithP; 21-08-2018 at 8:25 PM.
    .
    • RAS83
    • By RAS83 21st Aug 18, 8:34 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    Good spot, thank you.

    You mean add it into the PDF as an image rather than it being copied and pasted text from the AA? Will have to see if i can do that
    • KeithP
    • By KeithP 21st Aug 18, 8:37 PM
    • 11,191 Posts
    • 11,753 Thanks
    KeithP
    You mean add it into the PDF as an image rather than it being copied and pasted text from the AA? Will have to see if i can do that
    Originally posted by RAS83
    Yes, that's what I mean.

    I think a photo of that letter carries more weight rather that a c&p of text.

    But that's just an opinion.
    .
    • RAS83
    • By RAS83 21st Aug 18, 9:05 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    I agree and will do so, thank you for your input.
    • Fruitcake
    • By Fruitcake 22nd Aug 18, 11:07 AM
    • 38,002 Posts
    • 85,338 Thanks
    Fruitcake
    Embed all the images rather than include links. That way the assessor has to look at them rather than run the risk of a corrupted web link.

    Save as a pdf, attach to the appeal and write, see attached pdf appeal in the text box of the appeal.
    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
    • RAS83
    • By RAS83 22nd Aug 18, 11:52 AM
    • 27 Posts
    • 8 Thanks
    RAS83
    Ok thanks i will embed all the images.

    The ebay link is no longer correct when i clicked on it. Just goes to the ebay homepage now. I will leave it in anyway.

    Would it be useful to include the images of my vehicle they sent to emphasise point number 4?

    Many thanks for your help
    • Fruitcake
    • By Fruitcake 22nd Aug 18, 12:21 PM
    • 38,002 Posts
    • 85,338 Thanks
    Fruitcake
    Remove the ebay link as it is not relevant any more.
    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
    • nosferatu1001
    • By nosferatu1001 22nd Aug 18, 12:26 PM
    • 4,111 Posts
    • 4,982 Thanks
    nosferatu1001
    Do the images help you?

    If YES - include them
    If NO - dont

    Its not difficult.
    • RAS83
    • By RAS83 22nd Aug 18, 1:13 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    Same could be said of the correct use of grammar.
    • nosferatu1001
    • By nosferatu1001 22nd Aug 18, 2:25 PM
    • 4,111 Posts
    • 4,982 Thanks
    nosferatu1001
    Same could be said about being polite to people trying to help you and dozens of others, all at the same time, when you ask an asinine question with an obvious answer.
    • RAS83
    • By RAS83 22nd Aug 18, 2:42 PM
    • 27 Posts
    • 8 Thanks
    RAS83
    I agree and have been very polite and thankful where people have been helpful.
    What may be obvious to yourself who is experienced in this field, may not be obvious to someone dealing with it for the first time, taking in a vast amount of new information and not wanting to make a mistake which seems to be easy to do in this process.

    Your last sentence was not necessary.
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