PCN for free parking - Britannia Parking, Southampton West Quay car park Options

[daxilic]

Today a car was parked at West Quay car park in Southampton (driver unknown) for less than an hour for free - 60 minutes free parking after 6pm. A PCN was left on the windscreen which said "failed to display a ticket". So even though you can park for free you still need to get a ticket from the machine and display it. The parking sign said "18:00 - 20:00, UP TO 60 MINUTES FREE".

The exact car park location is here. So what is your advise to the driver?

This post has been edited by daxilic: Fri, 6 Jul 2018 - 17:10

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[daxilic]

Was the letter you received a Notice to Keeper? Perhaps post it up.

Hold off on the POPLA appeal and send it in close to the end of the allowable time. In the meantime contact the DVLA (email address is in the forum somewhere, subjectaccess....????)

One of the possible failures you will mention to POPLA is that the have they have not sent a NTK within the 56 days or that did then they didn't contact the DVLA. You send in the appeal as close to the end as possible so that they are not reminded of their cockup and hurredly push out a valid NTK.

I haven't received a NTK in the post, this was a pdf emailed to me today - generic letter with no mention of notice of keeper. Could I still receive a NTK?

Why do I need to contact the DVLA?

This post has been edited by daxilic: Thu, 16 Aug 2018 - 16:09

[kommando]

Could I still receive a NTK?

Yes, but by returning your POPLA appeal as close to the 56 days as possible whilst still meeting the POPLA deadline then you do not remind them.

Why do I need to contact the DVLA?

To be 100% sure they did not access the DVLA and to include that proof in your POPLA appeal.

[cabbyman]

SubjectAccess.Requests@dvla.gsi.gov.uk

Ask for details of anyone who has asked for your personal details in the last 3 months. DVLA autoresponse often says up to 40 days but I had mine, by post, within 3-4 days.

[daxilic]

Could I still receive a NTK?

Yes, but by returning your POPLA appeal as close to the 56 days as possible whilst still meeting the POPLA deadline then you do not remind them.

Why do I need to contact the DVLA?

To be 100% sure they did not access the DVLA and to include that proof in your POPLA appeal.

SubjectAccess.Requests@dvla.gsi.gov.uk

Ask for details of anyone who has asked for your personal details in the last 3 months. DVLA autoresponse often says up to 40 days but I had mine, by post, within 3-4 days.

That's great thank you. I've sent the email to the DVLA. I'll keep you guys updated on the POPLA appeal. Thanks again for your help!

[cabbyman]

If the DVLA get back to you quick enough and confirm there was nmo application for RK details, that's a very, very strong point for POPLA, so leave your appeal until the last minute.

[daxilic]

If the DVLA get back to you quick enough and confirm there was nmo application for RK details, that's a very, very strong point for POPLA, so leave your appeal until the last minute.

I've had a response from the DVLA and they confirmed that Britannia haven't requested my details, so looking good so far

[nosferatu1001]

Sounds good It means they cannot have complied with POFA
YUou will need to include the DVLAs response as evidence.

[cabbyman]

How far are you with preparing your POPLA appeal? Show us your draft.

[daxilic]

How far are you with preparing your POPLA appeal? Show us your draft.

So far haven't prepared anything but I was planning to base it on the POPLA appeal draft on this forum thread (post #11)

[nosferatu1001]

Get going over the weekend

If you do copy and paste from another, tell us which bits you have altered - underline /mark them in red, using the forum tools. MUCH easier for us then.

[daxilic]

Get going over the weekend

If you do copy and paste from another, tell us which bits you have altered - underline /mark them in red, using the forum tools. MUCH easier for us then.

Hi sorry for the late response - deadline for POPLA appeal is this Wednesday and I'm cutting it fine.

I've taken the wording from the thread post I linked earlier and tailored it to me. I've skimmed over it and removed some bits about no windscreen sticker being issued (mine was issued), and a paragraph about the issued NTK (I didn't receive a NTK). I'm not sure about point 3 - see the rejection letter I received from Britannia attached at the bottom. Legislation isn't my strong point and some of it is a bit over my head to be honest. This is what I've come up with:




Appeal re POPLA; xxxxxxx v Britannia Parking Group Ltd

POPLA verification code: xxxxxxxxx
Parking Charge Notice Number: xxxxxxxxx
Vehicle Registration: xxxxxxxx
Site: xxxxxxxxxx
Issue date: xxxxxxx



Dear POPLA Adjudicator,

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question.
I contend that I am not liable for this parking charge on the basis of the below points:

1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2) 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.

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



1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if:

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor); (a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further if a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8;
It is my understanding that for an operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The Driver of the vehicle has not been identified (as confirmed in the operators rejection of my appeal, dated xxxxxxxxx).

11(1)The third condition is that—
(a)the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;
(b)the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);
©the information sought by the application is provided by the Secretary of State to the applicant. See attached for letter from DVLA showing that Britannia didn't request the keeper's details.

Please be advised that the driver of the motor vehicle is required to pay the parking charge in full. As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and current postal address of the driver and pass this notice to them for payment.

Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9).

As this operator has evidently failed to serve a compliant NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly elaborated.

2) 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

The signs were contradictory and crowded with different terms, so this is not an example of plain intelligible language, contrary to the Consumer Rights Act 2015:

68 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.
It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park.



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.

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.

The operator has provided photographic evidence of all signage throughout the site. These photographs are shown in daylight only and so are not representative of the conditions prevalent at the time of the alleged incident, and should be disregarded.

The operator has not stated if and where the vehicle was parked, only that the vehicle entered and left the car park. There is no evidence of what signage might be visible to the driver from their point of view, in the same lighting conditions, and thus no evidence that a contract for parking was accepted

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.

For this appeal, 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. 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.


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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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




Yours faithfully,

xxxxxxxxx
(Registered keeper of vehicle)



Thanks.

This post has been edited by daxilic: Tue, 11 Sep 2018 - 10:52

[kommando]

Nothing in that letter rebuts or even mentions point 3.

Point 3 is saying they do not have a contract with the landowner, nothing in their letter says they have a contract.

[cabbyman]

TAKE EVERYTHING DOWN. There is far too much identifying detail in all of it. Did you learn NOTHING from all the previous posts in this thread?????? I could send a load of twaddle to POPLA and lose it for you.....as could the PPC!

Redact it all properly and repost.

This post has been edited by cabbyman: Mon, 10 Sep 2018 - 19:20

[daxilic]

TAKE EVERYTHING DOWN. There is far too much identifying detail in all of it. Did you learn NOTHING from all the previous posts in this thread?????? I could send a load of twaddle to POPLA and lose it for you.....as could the PPC!

Redact it all properly and repost.

What's the problem? Britannia haven't contacted the DVLA for my information and sent a NTK so according to you guys I'm 100% guaranteed to win, what difference does posting information make at this point?

[ostell]

So "someone" in Brittania sends in a losing appeal using the POPLA verification code. That number is basically a password into the appeal process. Do you normally publish passwords?

This post has been edited by ostell: Tue, 11 Sep 2018 - 07:25

[Umkomaas]

You need to edit out all these !!!8220; (and similar) hieroglyphics from your final appeal.

You should spell out the paragraph of PoFA you are relying on that the PPC did not access the registered keeper's details from the Secretary of State (paragraph 11)

11(1)The third condition is that—
(a)the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;
(b)the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);
©the information sought by the application is provided by the Secretary of State to the applicant.

..... and here is the proof (attach a copy of the DVLA's reply to your query).

POPLA assessors are not legally trained, so when you get to pleading legal points, you have to spell it out for them, in fairly simple terms.

[daxilic]

So "someone" in Brittania sends in a losing appeal using the POPLA verification code. That number is basically a password into the appeal process. Do you normally publish passwords?

Okay fair enough, I didn't know it was a password, I've replaced the information with x's. Someone would have to be a real ******* to use another persons verification code to deliberately lose the appeal.

You need to edit out all these !!!8220; (and similar) hieroglyphics from your final appeal.

I did wonder what those '!!!8xxx" parts were for.

You should spell out the paragraph of PoFA you are relying on that the PPC did not access the registered keeper's details from the Secretary of State (paragraph 11)

11(1)The third condition is that—
(a)the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;
(b)the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);
©the information sought by the application is provided by the Secretary of State to the applicant.

..... and here is the proof (attach a copy of the DVLA's reply to your query).

POPLA assessors are not legally trained, so when you get to pleading legal points, you have to spell it out for them, in fairly simple terms.

Okay cool I've amended that on my previous post. Any other changes?