Notice to Keeper (Minster Baywatch, ANPR)

OK, received the letter rejecting my initial appeal with a POPLA code, so I will prepare my evidence to submit to POPLA.

My main points will be:

1. Keeper Liability not established (inc Henry Greenslade statement), no mention on signage that keepers will be pursued

2 Operator hasn't shown it's the driver they are pursuing: can't be assumed

3. unclear signage, poorly positioned (parallel to approach road, below waist height), insufficient signs, not visible from all spaces, font size too small to be readable, penalty amount not clearly displayed (unlike Beavis case): commercial justification does not apply (not a GPEOL)

4. Use of ANPR not clearly shown, does not state what data will be used for: breach of CoP 21.1, vehicle not 'parked' for whole time in car park (time waiting for a space), ANPR not infallible (quote previous cases of double-visit)

5. CoP grace periods not stated/adhered to

6. NTK threatens adding costs to their claim: court cost, credit ref agency cost, their solicitor's costs; under POFA 4(5) only amount recoverable from keeper is parking charge itself

7. No evidence of authority to act from landowner

additional:
NTK appears to be issued by a limited company: statutory info required (company reg no, reg office address) not shown on document

No VAT invoice issued: not a valid request for payment

Anything else I've missed?

Coupon-mad wrote: »

Do not use those words at all, nothing about loss or POPLA immediately hit the button to roll out their creaky old template misunderstanding that the Beavis case supersedes all...

Understood, will remove that.

I assume the advice is still to wait a reasonable time before submitting a POPLA appeal to give the operator little time to respond?

OK, have finished composing my POPLA appeal. Feel free to comment/ridicule/tear to shreds as you see fit...

POPLA APPEAL code xxx
Minster Baywatch Ltd v BindiBahji

As the registered keeper of the above vehicle, I wish to appeal the ‘Notice To Keeper’ that Minster Baywatch Ltd issued against it. I contend that I am not liable for the parking charge, based on the following grounds, which are explained further below:

1.Keeper Liability not established: Notice To Keeper failed to meet strict requirements of POFA 2012
2.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
3.Landowner Authority: the operator must evidence its authority to act on behalf of the landowner
4.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
5.The signs fail to transparently warn drivers that ANPR cameras are in use or of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs.
6.No evidence supplied that Minster Baywatch Ltd’s ANPR system is reliable
7.Grace periods as mandated in BPA’s CoP were not stated nor adhered to
8.The charge of £100 plus a surcharge for debit/credit card payments exceeds the appropriate amount specified in law

1. Keeper Liability not established: Notice To Keeper failed to meet strict requirements of POFA 2012

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) potentially gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to ‘keeper liability’ does not exist.
Minster Baywatch's Notice to Keeper (“NTK”) failed to comply with Schedule 4 of the POFA, due to various wording omissions:

Contrary to the requirements of Paragraph 9(2)(c), this NTK fails in the prescribed requirement to: “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable.”

The NTK does not inform the recipient of the amount of the parking fee that was paid by the driver, nor what duration of parking this amount covers, nor the length of overstay alleged, nor the amount of the alleged underpayment.

Contrary to the requirements of Paragraph 9(2)(f), this NTK fails in the prescribed requirement to: “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.”

As this is prescribed, mandatory wording under statute, it is clear that Minster Baywatch Ltd has decided not to exercise its rights under the POFA and can only pursue the driver.

This NTK also contains a threat by Minster Baywatch Ltd to add other costs to its alleged claim against me as registered keeper:
“… further costs incurred by Minster Baywatch Ltd will be added. These will include but not be limited to the cost of issuing the court claim, credit reference agency costs and our solicitor’s costs.”

This is in direct violation of POFA paragraph 4(5) which states:
“The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).”

As the NTK does not fully comply with POFA, Minster Baywatch Ltd has consequently forfeited its right to recover any unpaid parking charges from me as the registered keeper of the vehicle. As such, POPLA will be unable to conclude that the PCN has been issued correctly.

Should Minster Baywatch Ltd try to suggest that there is any other method whereby a registered keeper can be held liable for a charge where a driver is not identified, I draw the assessor’s attention to the clear statement in the 2015 Annual Report by Henry Greenslade, the POPLA Lead Adjudicator:

“There appears to be continuing misunderstanding about Schedule 4... 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.”
https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

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

This exact finding was made in 6061796103 in September 2016, where POPLA Assessor Carly Law found:
“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. Landowner Authority: the operator must evidence its authority to act on
behalf of the landowner

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’ setting out full details - including any exemptions or grace periods or times and days of operation - is key evidence to define what this operator is/is not authorised to do, for what type of contravention and when, and the charge authorised by the landowner and the circumstances in which the charge can arise. It cannot be assumed that the sparse signs set out the wishes of the landowner, not least because there is nothing about 'grace periods' nor exemptions on those signs yet it is contended that the agreement with the landowner surely must set out these details.

Further, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, it cannot be assumed 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, authorised grace periods nor the charge itself.

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 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.

I put this operator to strict proof to demonstrate full compliance with Paragraph 7 of the BPA Code of Practice (“CoP”), which defines the bare minimum mandatory requirements:

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. 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

Although Minster Baywatch Ltd is aware that the British Parking Association CoP requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, my research has uncovered clear evidence that the signs in this particular car park were not sufficiently clear to give proper notice to the driver. I also contend that there was no agreement to the ‘parking charge’ at all because there are so few signs in the car park itself that the terms are not clearly visible from all parking spaces.

Firstly, the sign at the entrance to the car park is positioned parallel to the road such that it is impossible for a driver to read without turning his/her head at a ninety degree angle to the road ahead (see Photograph 1 and Photograph 2).
The BPA CoP states under appendix B, Entrance Signs:
“The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead..”

I have seen no site map and if one is produced in evidence I contend that it is not an up-to-date record of the current lack of signage around all bay areas.
I also require proof of where the car was parked during the time stated, to prove the operator's contention that this was one single parking event.

It is submitted that the driver did not have a fair opportunity to read about any £100 charge in large lettering anywhere near where the car was parked, wherever that may have been on site. Minster Baywatch Ltd have failed to evidence that the driver was bound to have seen notice of the contract and of the £100 charge itself. In fact the entrance sign fails to make any prominent mention of any £100 charge at all (see Photograph 3).
In the recent Supreme Court case of Parking Eye Ltd v Beavis (mentioned by Minster Baywatch in their rejection of my appeal to them) 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:

[IMG]file:///d:\temp\msohtmlclip1\01\clip_image009.jpg[/IMG]http://imgur.com/a/AkMCN

In the Beavis case the £85 charge itself was displayed in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were prominent signs at the entrance and all around the car park, according to the Judges. An example of the type of sign used by Parking Eye Ltd as referred to in the Beavis case is shown below to allow comparison to the signs under dispute in this case:
This case, by comparison, does not demonstrate 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.

[IMG]file:///d:\temp\msohtmlclip1\01\clip_image013.jpg[/IMG]
In this case the only mention of a £100 charge on the entrance sign appears at the very bottom of sign in tiny lettering (less than 10mm high, see Photograph 4 above), and this part of the sign is positioned well below waist height when standing directly in front of the sign. This lettering comprehensively fails the general legal principle known as the “Red Hand Rule” which states that a party wishing to incorporate an exemption or penalty clause must take reasonable steps (at or before the time of contracting) to bring the party's attention to the clause.
http://legalfloss.blogspot.co.uk/2013/07/contract-red-hand-rule-and.html
The signage displayed within the car park itself is very sparse, and it is not easily visible from every parking space. Where a sign is visible from a parking space, it is very generally very small and impossible to read unless the driver is standing very close to it (see Photograph 5, Photograph 6 and Photograph 7).

In conclusion, given the lack of sufficient signage, the poor positioning of the signs that are in place, the lack of prominence of notice of any penalty charge and its tiny lettering, in this case there is no possible way that a driver can be deemed to have read, digested and agreed to these terms before driving past the entrance sign. Therefore, neither the driver nor the registered keeper are liable to pay the charge claimed by the operator.

I've now received MB's reply to my POPLA appeal. It's pretty much as I expected: they still claim Beavis applies in a pay & display car park and supports their £100 charge, and they say their signage is BPA approved. The photos they've used are clearly old as some of the signs they show are no longer there (I have a recent photo to show this).

Regarding rebuttal, how do people usually get around the 2000 character limit for rebuttals? Should I submit a PDF by email?

One other question: they have supplied a (redacted) contract between Minster Baywatch Ltd and Bransby Wilson Parking Solutions Ltd for "parking control and enforcement". As Brandsby Wilson is not the landowner (presumably they are the landowner's agent, but that is not stated) presumably this needs strongly rebutting?