DIR Return Create A Forum - Home
---------------------------------------------------------
FreeTrafficLegalAdvice
HTML https://ftla.createaforum.com
---------------------------------------------------------
*****************************************************
DIR Return to: Private parking tickets
*****************************************************
#Post#: 20613--------------------------------------------------
Civil enforcement (CE) B10 PCN
DIR By: Fazzy
Date: April 25, 2024, 11:26 am
---------------------------------------------------------
HTML https://ibb.co/m93ZdzX
HTML https://ibb.co/WzXYRbp
Hi all,
Posting this one for a friend. They received a PCN from ce and
showed me for advice. In my rushed search I thought the ntk was
non compliant so told them to appeal saying that. Ce obviously
rejected and provided popla code but now I’m unsure if the ntk
is actually non compliant.
Friend is hoping to go and speak to the landowner (a local
grocery store) soon.
Please let me know if they have grounds for popla appeal. Thank
you.
#Post#: 20623--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: DWMB2
Date: April 25, 2024, 12:18 pm
---------------------------------------------------------
To be able to offer any advice you'll need to give us some
information with which to work. As a starting point, read
through the following thread, providing as much information
requested as you are able to: READ THIS FIRST - Private Parking
Charges Forum guide
HTML https://www.ftla.uk/private-parking-tickets/read-this-first-private-parking-charges-forum-guide/.<br
/>In particular we'll need:
- The original NTK
- Their appeal
If possible, it might be better if your friend can post directly
themselves, so that this does not turn into Chinese whispers
(which I fear it may already have done if they ended up
inadvertently sending a half-cocked appeal)
#Post#: 20655--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: Fazzy
Date: April 25, 2024, 4:26 pm
---------------------------------------------------------
My apologies - the image didn’t embed in my post. The links of
front and back of PCN on there now.
Here’s the rejection email
HTML https://ibb.co/vPVMXVm
HTML https://ibb.co/vDyzsZM
The friend is technophobe or more unable to comprehend anything
too complicated. They need help and while I’m usually helpful
-in this instance busy life got in the way and I might’ve messed
up!
#Post#: 21004--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: b789
Date: April 29, 2024, 12:46 pm
---------------------------------------------------------
The NtK is not fully PoFA compliant as it does not include the
requirements of para 9(2)(e)(i) in that there is no invitation
to the keeper to pay the charge. However, to include that point
in the POPLA appeal, you will need to lead the assessor by the
nose to that point and explain it, preferably in words of one
syllable, why the NtK fails the strict requirements of PoFA.
Te above is rendered moot if the keeper has admitted to being
the driver. Can you show us the exact wording of the appeal that
was sent?
#Post#: 21047--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: Fazzy
Date: April 29, 2024, 4:58 pm
---------------------------------------------------------
Thank you.
I copied and pasted a previous response from the forum which
they sent off as appeal.
---------------
This is an appeal by the registered keeper - No driver details
will be given. Please do NOT try the usual Group Nexus Trick of
asking for driver details in order to get around the fact your
NTK does not comply with POFA. As there is no keeper liability
then liability cannot flow from the driver to the keeper and
thus is an auto win @ POPLA. Please therefore cancel the notice
or issue a POPLA code where you will auto withdraw.
#Post#: 21050--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: b789
Date: April 29, 2024, 5:23 pm
---------------------------------------------------------
I hope that isn't what you sent off as your POPLA appeal. IS
Civil Enforcement part of Group Nexus?
#Post#: 21098--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: Fazzy
Date: April 30, 2024, 6:26 am
---------------------------------------------------------
That was the appeal to CE. Popla appeal yet to be sent.
#Post#: 21107--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: b789
Date: April 30, 2024, 8:19 am
---------------------------------------------------------
But you mentioned GroupNexus in your appeal. What have CE got to
do with GroupNexus?
#Post#: 21118--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: Fazzy
Date: April 30, 2024, 9:11 am
---------------------------------------------------------
I searched for CE, spotted a recent post from a user showing an
identical format of the PCN my friend received. I forwarded the
link to that post which had the exact wording of the appeal. So
it was a copy and paste appeal from pepipoo. As I mentioned
earlier - I was short on time so my search and copy and paste
job didn’t have much thought into it.
#Post#: 21667--------------------------------------------------
Re: Civil enforcement (CE) B10 PCN
DIR By: Fazzy
Date: May 6, 2024, 5:05 am
---------------------------------------------------------
Please let me know if this popla appeal look ok? Thank you.
Dear POPLA Adjudicator,
I am the registered keeper of vehicle xxxxxxx and am appealing a
parking charge from Civil Enforcements on the following points:
1.
Liability can apply
2.
pursuing is in fact the driver who was liable for the charge
3.
strict proof of full compliance with the BPA Code of Practice
4.
1.
Liability can apply.
Although Schedule 4 of the Protection of Freedoms ACT 2012
(POFA) potentially gives a creditor the right to recover any
unpaid paring charges from a vehicles keeper, this right is
strictly subject to statutory conditions being met by the
operator, without which the right to ‘keeper liability’ does not
exist.
The operators Notice to Keeper fails to comply with Schedule 4
as below:
It fails to comply with paragragh 9(2)(e)
9(1)A notice which is to be relied on as a notice to keeper for
the purposes of paragraph 6(1)(b) is given in accordance with
this paragraph if the following requirements are met.
(2)The notice must— (e)state that the creditor does not know
both the name of the driver and a current address for service
for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify
the creditor of the name of the driver and a current address for
service for the driver and to pass the notice on to the driver;
The notice to keeper is non compliant as the incorrect format
for (e) has been used. There is no invitation to the keeper to
pay the charge
2.
pursuing is in fact the driver who was 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.
Where a charge is aimed only at a driver then, of course, no
other party can be told to pay. I am the appellant throughout
(as I am entitled to be), and as there has been no admission
regarding who was driving, and no evidence has been produced, it
has been held by POPLA on numerous occasions, that a parking
charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to
name the driver, yet still not be lawfully held liable if an
operator is not using or complying with Schedule 4. This applies
regardless of when the first appeal was made because the fact
remains I am only the keeper and ONLY Schedule 4 of the POFA (or
evidence of who was driving) can cause a keeper appellant to be
deemed to be the liable party.
The burden of proof rests with the Operator, because they cannot
use the POFA in this case, to show that (as an individual) I
have personally not complied with terms in place on the land and
show that I am personally liable for their parking charge. They
cannot.
Furthermore, the vital matter of full compliance with the POFA
2012 was confirmed by parking law expert barrister, Henry
Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule
4. Provided certain conditions are strictly complied with, it
provides for recovery of unpaid parking charges from the keeper
of the vehicle.
There is no ‘reasonable presumption’ in law that the registered
keeper of a vehicle is the driver. Operators should never
suggest anything of the sort. Further, a failure by the
recipient of a notice issued under Schedule 4 to name the
driver, does not of itself mean that the recipient has accepted
that they were the driver at the material time. Unlike, for
example, a Notice of Intended Prosecution where details of the
driver of a vehicle must be supplied when requested by the
police, pursuant to Section 172 of the Road Traffic Act 1988, a
keeper sent a Schedule 4 notice has no legal obligation to name
the driver. [...] If {POFA 2012 Schedule 4 is} not complied with
then keeper liability does not generally pass.''
Therefore, no lawful right exists to pursue unpaid parking
charges from myself as keeper of the vehicle, where an operator
is NOT attempting to transfer the liability for the charge using
the Protection of Freedoms Act 2012.
This exact finding was made in 6061796103 against ParkingEye in
September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to
transfer the liability for the charge using the Protection of
Freedoms Act 2012 and so in mind, the operator continues to hold
the driver responsible. As such, I must first consider whether I
am confident that I know who the driver is, based on the
evidence received. After considering the evidence, I am unable
to confirm that the appellant is in fact the driver. As such, I
must allow the appeal on the basis that the operator has failed
to demonstrate that the appellant is the driver and therefore
liable for the charge. As I am allowing the appeal on this
basis, I do not need to consider the other grounds of appeal
raised by the appellant. Accordingly, I must allow this
appeal.''
3.
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
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
There was no contract nor agreement on the 'parking charge' at
all. It is submitted that the driver did not have a fair
opportunity to read about any terms involving this huge charge,
which is out of all proportion and not saved by the dissimilar
'ParkingEye Ltd v Beavis' case.
In the Beavis case, which turned on specific facts relating only
to the signs at that site and the unique interests and
intentions of the landowners, the signs were unusually clear and
not a typical example for this notorious industry. The Supreme
Court were keen to point out the decision related to that car
park and those facts only.
In the Beavis case, the £85 charge itself was in the largest
font size with a contrasting colour background and the terms
were legible, fairly concise and unambiguous. There were 'large
lettering' signs at the entrance and all around the car park,
according to the Judges.
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 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.
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.
''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.''
''When designing an outdoor sign for your business keep in mind
the readability of the letters. Letters always look smaller when
mounted high onto an outdoor wall''.
''...a guideline for selecting sign letters. Multiply the letter
height by 10 and that is the best viewing distance in feet.
Multiply the best viewing distance by 4 and that is the max
viewing distance.''
So, a letter height of just half an inch, showing the terms and
the 'charge' and placed high on a wall or pole or buried in far
too crowded small print, is woefully inadequate in an outdoor
car park. Given that letters look smaller when high up on a wall
or pole, as the angle renders the words less readable due to the
perspective and height, you would have to stand right in front
of it and still need a stepladder (and perhaps a torch and/or
magnifying glass) to be able to read the terms.
Under Lord Denning's Red Hand Rule, the charge (being 'out of
all proportion' with expectations of drivers in this car park
and which is the most onerous of terms) should have been
effectively: 'in red letters with a red hand pointing to it' -
i.e. VERY clear and prominent with the terms in large lettering,
as was found to be the case in the car park in 'Beavis'. A
reasonable interpretation of the 'red hand rule' and the
'signage visibility distance' tables above and the BPA Code of
Practice, taking all information into account, would require a
parking charge and the terms to be displayed far more
transparently, on a lower sign and in far larger lettering, with
fewer words and more 'white space' as background contrast.
Indeed in the Consumer Rights Act 2015 there is a 'Requirement
for transparency':
(1) A trader must ensure that a written term of a consumer
contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of
subsection (1) if it is expressed in plain and intelligible
language and it is legible.
The Beavis case signs not being similar to the signs in this
appeal at all, I submit that the persuasive case law is in fact
'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106'
about a driver not seeing the terms and consequently, she was
NOT deemed bound by them.
This judgment is binding case law from the Court of Appeal and
supports my argument, not the operator's case.
This was a victory for the motorist and found that, where terms
on a sign are not seen and the area is not clearly marked/signed
with prominent terms, the driver has not consented to - and
cannot have 'breached' - an unknown contract because there is no
contract capable of being established. The driver in that case
(who had not seen any signs/lines) had NOT entered into a
contract. The recorder made a clear finding of fact that the
plaintiff, Miss Vine, did not see a sign because the area was
not clearly marked as 'private land' and the signs were
obscured/not adjacent to the car and could not have been seen
and read from a driver's seat before parking.
So, for this appeal, I put this operator to strict proof of
where the car was parked and (from photos taken in the same
lighting conditions) how their signs appeared on that date, at
that time, from the angle of the driver's perspective. Equally,
I require this operator to show how the entrance signs appear
from a driver's seat, not stock examples of 'the sign' in
isolation/close-up. I submit that full terms simply cannot be
read from a car before parking and mere 'stock examples' of
close-ups of the (alleged) signage terms will not be sufficient
to disprove this.
*****************************************************
Page 1 of 2
DIR Next Page