St Austell McDonald £100 PCN

(Popla appeal letter 2/2)

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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. (As proved in various attachments where it doesn’t describe any real case scenario of this situation.) 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 very 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

 
4- No Keeper Liability

The Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park.
These times do not equate to any single evidenced period of parking. There is no evidence of a single period of parking and this cannot reasonably be assumed on the balance of probabilities, from two photos of a car in moving traffic, timed hours apart.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;

“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

You cannot discount that the driver may have driven in and out on two separate occasions. There is ample evidence in the public domain that ANPR timings can mask other ordinary circumstances, such as two visits ('double dip', a well-known phenomenon).

Here are just three examples of BPA member ANPR evidence failures, including a court loss and an ICO investigation:

parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html

(Attachment “Highview Parking spurred into immediate further action after losing at POPLA”)

parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

(Attachment “ParkingEye lose in court - accuse driver's evidence of being unreliable, but their own evidence destroys their case”)

“The Judge […] also commented […] signage only talks about ‘parking’, and doesn’t claim that the clock starts ticking once you pass the ANPR cameras.”

“Contracts should not be let on any basis that incentivises additional charges, eg ‘income from parking charge notices only’”

parking-prankster.blogspot.co.uk/2015/10/parkingeye-subject-to-data-protection.html

(Attachment “ParkingEye subject to data protection complaint from Alexander Owens”)

This 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in the following article:

britishparking.co.uk/Other-Advice#4

(Attachment “Advice from the British Parking Association”)

Please take note of “As with all methods of enforcement on private land, proper enforcement is dependant on clear signage that is visible from all points of the car park.” that clearly is not the case looking at (Attachment A).

As with all new technology, there are issues associated with its use:
''Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

The BPA even mention this as an inherent problem with ANPR on their website;

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

POFA 2012, paragraph 9(3) states;

“The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)”

If the ANPR system has picked up two separate occasions then it would fail on the above ruling as two separate PCNs should be issued, assuming the vehicle in question had breached the contract terms, and not just the one that was sent to the Keepers address. I put the operator to strict proof that there was only one period of parking, because this is a mandatory requirement for keeper liability also stated clearly in Schedule 4.


Consequently, MET PARKING SERVICES LIMITED has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If MET PARKING SERVICES LIMITED should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

https://www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade
(Attachment “there is no 50 50 rule for private parking appeals says popla's Michael Greenslade”)


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.”

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)— (b) has given a notice to keeper in accordance with paragraph 9.''

The operator has failed to meet the second condition for keeper liability due to the flaws in the NTK. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012.

This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report:

''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
5- I beg to differ, as no real facts where presented to who the driver was. As such no legal rights exist to acquire or process any Data.
And as POPLA has many times done so, here is an example form March 2016

“Decision
Successful

Assessor Name
Linsdey Rogers

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant remained at the car park for longer that the stay was authorised.


Assessor summary of your case
The appellant raises several grounds of appeal including keeper liability.


Assessor supporting rational for decision
After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle in question at the time of the contravention. The operator is therefore pursuing the appellant as the registered keeper of the vehicle in this instance. For the 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 2012 (PoFA 2012) must be adhered to. The operator has provided me with a copy of the notice to keeper sent to the appellant. As the driver of the vehicles has not been identified, the notice to keeper will need to comply with section 9 of PoFA 2012. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am not satisfied that it is compliant. Section 9 (f) of PoFA it states “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given. From the evidence provided to me the PCN reads “Payment to be made within 28 days of issue.” As such, I can only conclude that the operator has not adhered to the PoFA guidelines and issued the PCN incorrectly.”

And the original PCN with the “Payment to be made within 28 days of issue.” Highlighted.
(Attachment C)
 
6- No Driver Liability

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

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

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

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
 
7- Unprofessional conduct by the operator.


The information managed by the operator is misleading, malicious, offensive and unlawful.

As it does not describe the facts or the truth. It doesn’t take into consideration any human factor. Because if it did the replies to appeals would not be “standard” but specific to the case in question.
By not replying to the actual case it is a mockery of the legal system we have and cluttering the system with unlawful demands.

The operator as the DVLA and BPA have allowed this ridiculous process to continue for far too long. As the operator is not doing his job, by being sure of what to do in each case. The DVLA is breaking the law by providing information to an operator that has not given any proof of true facts. And the BPA is in breach of their own procedures and rules. As the continues breach of laws and rules and procedures from the operator are the responsibility of the BPA.

“2.3 The aim of the AOS Code of Practice (‘the Code’) is to describe ‘best practice’ for people and organisations that carry out parking control and enforcement on private land. All members of the AOS have agreed to support and uphold the principles of the Code. To become a member, parking operators must confirm that they have systems and procedures in place to ensure compliance with the Code. Compliance with the Code should be part of the culture of the organisation.

The Code describes the objectives of these systems and procedures, and the standards of conduct and practice within which AOS members should work.


6.5 Non-compliance with the Code will be dealt with and monitored through a scheme of sanctions. We will issue sanction points depending on the severity of the non-compliance. If you reach twelve points on your ‘membership licence’ in any twelve-month period, we may refer you to the BPA Council for disciplinary action. The referral may result in your membership with the AOS and the BPA being suspended or terminated.

6.6 If we find there has been a failure to comply with the Code, either during a complaint investigation or a compliance audit, you must make appropriate changes to your business operation to bring it into compliance. We will write to you asking for the changes to be made. This will be a formal request and we will give you a timescale for you to make the changes and send us evidence that you have done this.

6.7 If you do not make the changes by the date given in the formal written request we will issue an appropriate sanction against your membership licence. If your licence reaches 12 points, we may suspend your membership of the AOS, and of the BPA.

6.8 If you do not comply with the Code you may be suspended or expelled immediately from the BPA. We would then start the disciplinary procedures set out in the BPA Code of Professional Conduct. This may happen when, in the opinion of the BPA Council, your failure to comply with the Code brings the BPA and its membership into disrepute.

6.9 We will inform the DVLA immediately if you are suspended or expelled from membership, or if your noncompliance with the Code is sufficiently serious.”


Due to the stress caused, and time wasted, with various letters threatening bailiffs, court, and CCJ's, and a misuse of personal data with the DVLA, which all could have been easily avoided if the operator had done his job correctly, I feel it is fair to claim £300 compensation.
RE: Vidal!Hall v Google (IC Statement attached), the Court of Appeal ruled that compensation could be awarded for stress alone. Please also see here:
https://ico.org.uk/for-organisations/guide-to-data-protection/principle-6-rights/compensation/
(Attachment “Compensation _ ICO”)

I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour."

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Thank you for taking the time and for contributing.

Umkomaas wrote: »

~5,800 word appeal. More than 15 pages of A4 paper. I feel sorry for the POPLA Assessor.

Proportionate?

It's >40500 words as I am including all the attachments with the sites I am quoting. It's ~120 pages A4. The POPLA Assessor will probably stop and not continue as soon as he finds one ground for dismissal. That is my goal.

Thank you for your reply.

Umkomaas wrote: »

Probably. But the kitchen sink appeal seems to now include incorporating the bathroom too.

Hopefully I'm digging a hole deep enough for the operator and not myself.

Umkomaas wrote: »

There's not many regulars (CM apart - I don't know how she does it) who can/are prepared to devote the time to ploughing through the mountain of words any number of times a day trying to spot if an OP has blown their toes away.

I expect mostly go through the main points. And the more you read the quicker you get as the brain exercise.

Umkomaas wrote: »

On the proportionality front, there's one thread over on PePiPoo that has been going on for 18 months, and now extends to over 4,000 posts asking obscure/inane question after question after question, consuming huge amounts of regulars' time. I gave up on it long ago.

Yes I read all of their post too. Some tips there helped me on my appeal.

Umkomaas wrote: »

I much preferred your POPLA draft TD.

There is nothing wrong with DP's draft but some appeals have started to come back with a negative response. And every case is different.


Thank you for your reply again.