Free Traffic Legal Advice

Dear Sir/Madam
As the registered hirer, this is my appeal about a Penalty Charge Notice issued by MET Parking Services Ltd for an alleged breach of the company's terms and conditions in the McDonalds Car Park at Leytonstone, London, E11 1HR on 14/09/2024.
MET PCN Ref:
VRN:
1. Insufficient evidence of the alleged contravention
2. The site boundary is not clear
3. Lack of standing/authority from landowner
4. Non-Compliant Signage


1.        Insufficient evidence of the alleged contravention
The evidence provided by MET Parking Services for the alleged breach of terms and conditions stated as left the premises are still photos of an empty parked vehicle. There is also no evidence that the supposed boundaries are shown on any signs or on a prominent map that individuals can see while on site in order for them to make a reasonable decision as to what then might be considered 'off site'.
Even if a sign says a charge can be issued for 'leaving the site', this means nothing if 'the site' is not defined. This could include any number of shops, a cash point, toilets, cafe, drop-off areas, delivery area, the car park itself, rest area/benches and any other section of a retail park.
No evidence has been provided from MET Parking Services showing the vehicle driver leaving the site and I require MET Parking Services to provide this. Such evidence should include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left. The burden of proof shifts to MET Parking Services to prove otherwise and to explain why their attendant (presumably):
1. Watched a driver or occupant walk towards the edge of an undefined boundary,
2. Did not attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises.
The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.05.2012 District Judge McIlwaine stated:
‘you say he left the premises...where does the premises start and where does the premises finish?....there is a duty to mitigate the loss.’
In this case, I contend that MET Parking Services have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.
2.        The site boundary is not clear

The notice to keeper states that the reason for issuing the charge notice is: “Vehicle was left in McDonalds’ car park while the occupants left McDonalds premises.”
Nowhere on the signage does it state:
- What the site boundary is
- Show any map of where site boundary begins and ends
- That leaving the site fails to comply with terms and conditions
I require evidence from MET Parking Services to show a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left.
There are no legible markings distinguishing the boundary of McDonalds car park. How does one know that one has left the site?
3.  Lack of standing / authority from landowner - 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:
Section 7.1 states:
 “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.”
Section 7.21 states:
“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.”
Section 7.3 states:
“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”
I do not believe that MET’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' the landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay MET (not that a keeper can be liable anyway on non-relevant land and MET cannot enforce byelaws themselves). MET have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that MET are entitled to pursue these charges in their own right.
In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put MET to strict proof of compliance with all of the above requirements.

4.        Non-Compliant Signage - 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 £100, which is illegible in from the driver’s view at the site entrance, and is not visible from any parking spaces - 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, 2015.
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 sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, similar in appearance to un-related parking signage, 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 signs with the full terms displayed - i.e. with the sum of the parking charge itself in large lettering, and the full terms displayed on a single sign, - neither at the entrance nor elsewhere, 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 02/06/2016, 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 operator’s 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 the terms appear to be displayed inadequately, in letters that are approximately half an inch high.

I put the operator to strict proof as to the size and font of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself, and to prove the location and number of signs required to be read to fully read the full terms of parking.

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.”
“... Letter Visibility Chart shows the maximum reading distance for your sign to make the best impact, as well as the overall readable distance. A good rule of thumb is every 1 inch of letter height provides 10 feet of readability with the best impact. For example, 3” tall letters make the best impact within 30’; however, they can still be seen and read from up to 100’ away”
 “… The font type that you choose can also impact the visibility of your text. Very thin fonts and script fonts can potentially decrease visibility. When choosing fonts, you should select a bold style that is easy to read and with sufficient spacing between letters (kerning).”
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.
Taking all the above into account, I therefore respectfully request that my appeal is upheld, and the charge is dismissed.

Yours faithfully,

If the Hirer has not identified the driver, where is the most important point of appeal? Besides the point that it appears that transfer of liability has not been done according to the requirements of PoFA, are you saying that you appealed as the Hirer even though you did not receive a Notice to Hirer (NtH) in the hirers name?

From what has been said above, it appears that the Hirer has appealed without receiving an NtH and only received a copy of the Notice to Keeper (NtK) from Tusker. By failing to have the liability transferred from Tusker (the Keeper) to you (the Hirer) and by appealing as such, you have thrown away the "golden ticket".

We already have one headache with another Tusker leased car. Tusker "fines" team are a bunch of utter morons are are likely to screw you over, front and back!

Did you appeal the NtK because Tusker sent you a "letter of authorisation" to deal with it? If so, they have not transferred liability to the Hirer and they could still be liable. MET are very likely to get back to Tusker with a reminder and they will go ahead and pay it, leaving you with zero chance of recovering your money that they will charge or deduct from you.

The only way to guarantee that this would be easily dealt with was if Tusker transferred liability as required by PoFA. MET would then have been required to issue you an NtH in your name. This they would have screwed up though as they would have failed to comply with PoFA 14(2)(a) thus unable to hold the Hirer liable.

I hope I'm wrong, but if you try and appeal to POPLA the winning argument that MET have failed to comply with PoFA 14(2)(a), they will simply say that that doesn't apply because no NtH was issued. You now have to rely on the other arguments which POPLA assessors are likely to dismiss.

The other strong argument about no evidence that the driver left the site is good and should also be a winner. However, if it does not succeed and you need to fight it in court, where it would almost certainly win, it will be too late as MET will simply go back to Tusker with a reminder or a debt demand and they will simply pay it and then you are screwed.

So, what is the situation regarding the transfer of liability? Did you receive an NtH in your name or did you simply appeal on behalf of the Keeper?

Is the vehicle being purchased through a salary sacrifice scheme?

In the response from MET they say that you are not the named Hirer which implies that Tusker did transfer liability to the Hirer, possibly your employer. You appear to be the day to day keeper.

Did your employer pass the Notice to Hirer (NtH) they received after transfer of liability fro Tusker or have they simply passed on to you the copy of the Notice to Keeper (NtK) that Tusker will have also sent to the Hirer as part of the transfer of liability?

If the employer wanted to let you, the day to day keeper, handle the PCN on their behalf, they would have to issue a letter of authority something like this:

Quote

[Company Letterhead]
[Date]

To Whom It May Concern,

Re: Authority to Act on Behalf of [Company Name] in Relation to Notice to Hirer Ref: [NtH Reference Number]

This letter serves as formal confirmation that [Employee’s Full Name], an employee of [Company Name], is hereby authorised to act on behalf of [Company Name] in all matters related to the Notice to Hirer (Reference: [NtH Reference Number]), issued for the vehicle with registration number [Vehicle Registration Number].

[Employee’s Full Name] is authorised to correspond with [Parking Company Name], submit appeals, and make decisions on behalf of [Company Name] in relation to this Notice.

If you have any questions or require further verification of this authority, please do not hesitate to contact us.

Sincerely,

[Name of Authorised Person]
[Title]
[Company Name]
[Contact Information]

You can try and appeal to POPLA but the person is NOT the Hirer. The employer is the Hirer. The employee is the day to day keeper. Tusker giving the employee the NtK does not remove Tuskers liability unless they transferred liability to the Keeper (the employer) according to the requirements in PoFA paragraph 13.

BY all means, try a POPLA appeal as the "Hirer" although they are not the "Hirer". As far as we know, no NtH has been issued by the operator, whether to the employer or the employee because Tusker have fecked up the correct way to do it.

As far as POPLA will be concerned, the NtK was issued correctly (unless you can persuade them that there is some other failure that means it was not issued correctly) and PoFA paragraphs 13/14 do not apply as no one has transferred liability to the actual Hirer.

The employee should find out from Tusker whether they competed the transfer of liability as per PoFA requirements which you can read here:

Protection of Freedoms Act 2012

Paragraph 13 is the one the Keeper (Tusker) has to follow and then Paragraph 14 is the one applicable to the Hirer (the employer). The employee is not considered as the day to day keeper is not a term used in PoFA. Only "Driver", "Keeper" and "Hirer" apply.

From what we can tell, the correct procedure would be for Tusker, upon receipt of the NtK should complete the transfer of liability to the Hirer (the employer company). That absolves Tusker of any liability whatsoever. The Hirer then has to wait for an NtH to be sent in their name and after that they can deal with it. If they don't want to deal with it, they can give the employee (the day to day keeper) a letter of authority to handle it on behalf of the company.

This process has not been followed and the root cause is Tusker.

The MSE POPLA appeal you have linked to does not apply in this case. That was for a PCN issued on land under statutory control, Stansted Airport bylaws where there can be no keeper liability.

It's up to you how you appeal to POPLA. Had Tusker and the employer carried out the correct procedure and an NtH been issued to the employer company and had they provided the employee authorisation to deal with it in the company name, then it would be an easy win at POPLA because there would be no keeper/hirer liability and as long as the driver was not identified, that would be the end of the matter.

If you want to try POPLA, then I really don't know as what the employee is appealing as. If they are appealing as the driver, then there is little to appeal on. If the are appealing as the Hirer, then as long as POPLA don't query the fact that the appellant is not the named Hirer, there is a chance it could be successful, again as long as the driver is not identified.

If they are appealing on behalf of Tusker under a letter of authority to deal with it in their name, I don't see any successful appeal that can be made, whether the driver is identified or not.

From the information provided, there has only ever been an NtK issued. Transfer of liability has not been correctly carried out according to the requirements of PoFA and so, the Keeper (Tusler) is still ultimately liable. If POPLA don't accept whatever appeal you submit, MET are then going to go back to Tusker and demand that they pay the alleged debt. Tusker will simply pay it, charge back to the Hirer and the Hirer will dock the wages of the employee.

In the final event, if the employee wants to recover that money, they will have to sue Tusker or get their employer to sue Tusker.

You can use the same points in the POPLA appeal. However, there is no such thing as the "registered hirer". There is only the "driver", "keeper" or "hirer". The "keeper" can be just the "keeper" or the "registered keeper".

In this case, the person appealing is the day to day "keeper" but is not the named "keeper" which is where an issue could arise. The point about no evidence of the driver leaving the site is a powerful one but don't expect POPLA to really care. They can be moronic at times.

Even if POPLA reject the appeal, there is no obligation to pay the charge and the POPLA decision has absolutely no bearing on any future proceedings. However, as pointed out, If POPLA reject the appeal, MET are going to send a reminder to Tusker where you will be screwed.

It would be Tusker who receive the claim form in their name. If it were in the employees name, it would never reach a hearing because it is what is known as a "toothbrush" case where previous attempts by PPCs to claim driver left site cases that actually got in front of a judge, the advocate for the claimant was told in no uncertain terms that if they tried to waste the courts time on these pathetic, un-evidenced claims, they'd better bring a toothbrush next time because they would not be going home from the court for their unreasonable behaviour.