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  • FIRST POST
    • BindiBahji
    • By BindiBahji 18th Oct 16, 7:10 AM
    • 59Posts
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    BindiBahji
    Notice to Keeper (Minster Baywatch, ANPR)
    • #1
    • 18th Oct 16, 7:10 AM
    Notice to Keeper (Minster Baywatch, ANPR) 18th Oct 16 at 7:10 AM
    Hi all

    Received an NTK yesterday from Minster Baywatch alleging an overstay ("parking fee covering visit duration was not paid in full"). Their evidence is a photo from the ANPR cam taken on entry and another taken on exit.

    The overstay they allege is slightly unusual: the purchased ticket is timed 45 mins after the alleged time of entry, and the time of exit is 4 mins after the purchased ticket 'expires'.

    Am I right in thinking the best course of action initially is to respond with a fairly standard ANPR-type response mentioning:
    • poor signage
    • no evidence of authority to act on behalf of landowner
    • don't name the driver
    I intend to visit the car park asap to check the layout, signage etc.

    The driver suffers from anxiety/depression - worth mentioning that at this stage?
Page 1
    • pappa golf
    • By pappa golf 18th Oct 16, 8:45 AM
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    pappa golf
    • #2
    • 18th Oct 16, 8:45 AM
    • #2
    • 18th Oct 16, 8:45 AM
    the purchased ticket is timed 45 mins after the alleged time of entry


    the time of exit is 4 mins after the purchased ticket 'expires'.


    run that by us again?


    did the person buy a ticket within (say) 10 mins of arriving on the site , yes or no ?
    Have YOU had to walk 500 miles?
    Were you advised to walk 500 more?
    You could be entitled to compensation.
    Call the Pro Claimers NOW.
    • BindiBahji
    • By BindiBahji 18th Oct 16, 11:50 AM
    • 59 Posts
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    BindiBahji
    • #3
    • 18th Oct 16, 11:50 AM
    • #3
    • 18th Oct 16, 11:50 AM
    did the person buy a ticket within (say) 10 mins of arriving on the site , yes or no ?
    Originally posted by pappa golf
    Apparently they parked, discovered they had no change and went off to get some, so almost certainly no.

    It seems they did not realise that the car park was ANPR and assumed it was warden patrolled.
    • pappa golf
    • By pappa golf 18th Oct 16, 12:02 PM
    • 5,446 Posts
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    pappa golf
    • #4
    • 18th Oct 16, 12:02 PM
    • #4
    • 18th Oct 16, 12:02 PM
    the codes of practice used by both the the ATAs suggest (about) 10 mins after entry to read , digest the signage and to decide to stay (pay) or leave the site


    HOWEVER


    the signage in the car park should clearly state that ANPR is in use and state what reason it being used for


    if you did not see this information , then its obvious that the signage was unclear
    Last edited by pappa golf; 18-10-2016 at 12:15 PM.
    Have YOU had to walk 500 miles?
    Were you advised to walk 500 more?
    You could be entitled to compensation.
    Call the Pro Claimers NOW.
    • BindiBahji
    • By BindiBahji 18th Oct 16, 12:14 PM
    • 59 Posts
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    BindiBahji
    • #5
    • 18th Oct 16, 12:14 PM
    • #5
    • 18th Oct 16, 12:14 PM
    I have now visited the site and taken some photos.

    The signage is poor and the main sign is placed parallel to the street so you don't get chance to read it before you turn into the entrance.

    As well as the sign at the entrance/exit there are two additional very small signs placed high up on the wall of the adjoining building. Many areas of the car park have no sign within readable range. The lettering on the main sign is very small in places, no more than 10mm high.
    • Umkomaas
    • By Umkomaas 18th Oct 16, 12:14 PM
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    Umkomaas
    • #6
    • 18th Oct 16, 12:14 PM
    • #6
    • 18th Oct 16, 12:14 PM
    Appeal using the blue text template from the newbies FAQ sticky to elicit a rejection and POPLA code. You will need to get this beaten at POPLA, you won't get any appeal won directly with MB.

    Then do your research and preparation for submitting a POPLA appeal towards the middle of December.
    NEWBIES - wise up - DO NOT IGNORE A PARKING CHARGE NOTICE - you have been warned!

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Please note: I am NOT involved in any 'paid for' appeals service.
    • BindiBahji
    • By BindiBahji 18th Oct 16, 12:49 PM
    • 59 Posts
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    BindiBahji
    • #7
    • 18th Oct 16, 12:49 PM
    • #7
    • 18th Oct 16, 12:49 PM
    the signage in the car park should clearly state that ANPR is in use and state what reason it being used for
    Originally posted by pappa golf
    The only mention of ANPR I could see on the main sign is in the small print, positioned below waist level: "This car park is controlled by ANPR cameras and / or warden patrol." with a graphic alongside that looks like a CCTV camera.

    Last edited by BindiBahji; 18-10-2016 at 12:51 PM. Reason: add pic
    • Carthesis
    • By Carthesis 18th Oct 16, 1:39 PM
    • 481 Posts
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    Carthesis
    • #8
    • 18th Oct 16, 1:39 PM
    • #8
    • 18th Oct 16, 1:39 PM
    That notice of the £100 charge doesn't pass the Red-Hand Test.

    It doesn't mention anything about how soon or otherwise you have to purchase a ticket.

    Logic (hah!) would suggest that as long as the parking period paid for covered the total amount of time in the car-park (i.e. you pulled in, parked, went elsewhere for 45 mins, came back, paid for an hours parking, then left) that there is no actual loss incurred.
    • Coupon-mad
    • By Coupon-mad 19th Oct 16, 10:45 AM
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    Coupon-mad
    • #9
    • 19th Oct 16, 10:45 AM
    • #9
    • 19th Oct 16, 10:45 AM
    Yep the £100 is hidden in the small print - and do the t&cs at the top include 'overstay' as a contravention or mention what maximum time as a 'grace period' is allowed in that car park to get a ticket after reading the signs (minimum ten mins at that arrival stage alone, is mandatory in the BPA CoP).

    When you get to POPLA stage (not yet, the first appeal is an easy short template) this example I wrote on pepipoo would be a start as your base for appeal wording for POPLA (deliberately long):

    http://forums.pepipoo.com/index.php?showtopic=109215

    It would need the name of the parking firm changing of course (proof reading and tweaking of irrelevant words is your job!) and you can add:

    Grace Periods allowed by the BPA Code of Practice not contravened (search the forum for 'Grace Periods POPLA' to find that wording for that point, which needs to quote the CoP)
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Fruitcake
    • By Fruitcake 19th Oct 16, 11:32 AM
    • 36,492 Posts
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    Fruitcake
    They say that credit cards WILL incur a charge. That puts the total over 100 quid which is a breach of the BPA CoP.

    Do the signs show premium rate 'phone numbers? They are also prohibited.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • BindiBahji
    • By BindiBahji 19th Oct 16, 1:36 PM
    • 59 Posts
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    BindiBahji
    Logic (hah!) would suggest that as long as the parking period paid for covered the total amount of time in the car-park (i.e. you pulled in, parked, went elsewhere for 45 mins, came back, paid for an hours parking, then left) that there is no actual loss incurred.
    Originally posted by Carthesis
    Assuming the ANPR timestamps are correct, the total time in the car park exceeds the time paid for by approx 45mins

    Yep the £100 is hidden in the small print - and do the t&cs at the top include 'overstay' as a contravention or mention what maximum time as a 'grace period' is allowed in that car park to get a ticket after reading the signs (minimum ten mins at that arrival stage alone, is mandatory in the BPA CoP).
    Originally posted by Coupon-mad
    No specific mention of overstay, but it does state "All users must pay the appropriate fee for the duration of their visit..." No mention of a grace period at all.

    They say that credit cards WILL incur a charge. That puts the total over 100 quid which is a breach of the BPA CoP.
    Originally posted by Fruitcake
    Thanks, that's a useful point to mention at the POPLA stage

    Do the signs show premium rate 'phone numbers? They are also prohibited.
    Originally posted by Fruitcake
    No, the main sign shows a local geographic number
    • BindiBahji
    • By BindiBahji 26th Oct 16, 5:08 PM
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    BindiBahji
    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?
    • Myriddin
    • By Myriddin 26th Oct 16, 6:21 PM
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    Myriddin
    Don't see any BPA logo on that signage either which is yet another COP breach (18.8) unless it's at the top or side of the sign.

    The Red Hand Test, as mentioned by Carthesis, is useful as complimentary evidence as well as Beavis Vs PE concerning the very small lettering of the charge amount:

    http://legalfloss.blogspot.co.uk/2013/07/contract-red-hand-rule-and.html
    'People are stupid; they can only rarely tell the difference between a lie and the truth, and yet they are confident they can, and so are all the easier to fool.' Wizard's first rule © Terry Goodkind.
    • Coupon-mad
    • By Coupon-mad 27th Oct 16, 12:15 AM
    • 40,629 Posts
    • 52,499 Thanks
    Coupon-mad
    (not a GPEOL)
    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...
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • BindiBahji
    • By BindiBahji 27th Oct 16, 6:08 PM
    • 59 Posts
    • 20 Thanks
    BindiBahji
    Don't see any BPA logo on that signage either which is yet another COP breach (18.8) unless it's at the top or side of the sign.
    Originally posted by Myriddin
    The BPA and AOS logos are there in the bottom left corner, hard to see because the sign has been bent.

    The Red Hand Test, as mentioned by Carthesis, is useful as complimentary evidence as well as Beavis Vs PE concerning the very small lettering of the charge amount
    Originally posted by Myriddin
    Thanks, will incorporate
    • BindiBahji
    • By BindiBahji 27th Oct 16, 6:09 PM
    • 59 Posts
    • 20 Thanks
    BindiBahji
    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...
    Originally posted by Coupon-mad
    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?
    • Coupon-mad
    • By Coupon-mad 27th Oct 16, 6:29 PM
    • 40,629 Posts
    • 52,499 Thanks
    Coupon-mad
    No need to delay it at POPLA stage. It makes no difference because you will win, assuming the MB 'NTK' has some significant wording omissions when compared to paragraph 9 of Schedule 4. POPLA are rubbish at knowing the statute so you have to walk them through it.

    The example POPLA appeal I showed you that I wrote on pepipoo is specifically about Highview NTKs so you'll need to do a bit of 'spot the difference' with your own NTK to be sure it is badly non-compliant. But you can use the other points from that one as they are copied from the current template POPLA appeal points as specifically set out in 'POPLA Decisions' in September.

    Saves you writing your own stuff from scratch - e.g. the unclear signs template is very long & detailed already so you might only need to add a couple of lines to it with specifics like the fact that the signs are parallel to the approach road, below waist height and easily obscured by other vehicles and not able to be seen with the driver turning away from the road ahead.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • BindiBahji
    • By BindiBahji 31st Oct 16, 3:52 PM
    • 59 Posts
    • 20 Thanks
    BindiBahji
    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..”

    [IMG]file:///d:\temp\msohtmlclip1\01\clip_image001.png[/IMG][IMG]file:///d:\temp\msohtmlclip1\01\clip_image003.jpg[/IMG]
    Photograph 1: View of entrance sign when approaching car park from the west

    [IMG]file:///d:\temp\msohtmlclip1\01\clip_image004.png[/IMG][IMG]file:///d:\temp\msohtmlclip1\01\clip_image006.jpg[/IMG]
    Photograph 2: View of entrance sign when approaching car park from the east

    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).

    [IMG]file:///d:\temp\msohtmlclip1\01\clip_image008.jpg[/IMG]
    Photograph 3: View of the entrance sign taken from a distance of approx 2m

    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:
    [IMG]file:///d:\temp\msohtmlclip1\01\clip_image011.jpg[/IMG]

    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]
    Photograph 4: Close-up view of lettering size of penalty amount at very bottom of entrance sign

    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).

    [IMG]file:///d:\temp\msohtmlclip1\01\clip_image015.jpg[/IMG]
    Photograph 5: Lack of signage visible from parking spaces (1)

    [IMG]file:///d:\temp\msohtmlclip1\01\clip_image017.jpg[/IMG]
    Photograph 6: Lack of signage visible from parking spaces (2)
    [IMG]file:///d:\temp\msohtmlclip1\01\clip_image019.jpg[/IMG]
    Photograph 7: Lack of signage visible from parking spaces (3)

    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.
    Last edited by BindiBahji; 31-10-2016 at 3:56 PM. Reason: formatting
    • BindiBahji
    • By BindiBahji 31st Oct 16, 3:54 PM
    • 59 Posts
    • 20 Thanks
    BindiBahji
    (continued)

    5. The signs fail to transparently warn drivers that ANPR cameras are in use or of what the ANPR data will be used for

    Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

    Minster Baywatch Ltd’s signs do not comply with these requirements because its car park signage failed to prominently notify the driver that ANPR technology is in use what the ANPR data would be used for, which is a ‘failure to identify its commercial intent’, contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver’s arrival time would be calculated from a point in time on the road outside the car park. It is not at all clear that the cameras are not for security but are there in order to calculate ‘total stay time’.

    In fact, any reasonable driver would believe that they are authorised to park when shopping and that any maximum time (if known) would be the time spent actually parked. This is the normal, accepted meaning of a ‘parking restriction’, which would never include the time outside on the road, time spent finding a space or when queuing to exit. In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

    This is confirmed within the Consumer Rights Act 2015 including: Paragraph 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.

    and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

    Withholding material information from a consumer regarding the ‘time when the clock starts ticking’ and the commercial (not security) purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

    http://www.legislation.gov.uk/uksi/2008/1277/contents/made

    Misleading omissions: 6.—(1) “A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
    (a) the commercial practice omits material information,

    (b) the commercial practice hides material information,

    (c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

    (d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

    and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.”


    6.
    No evidence supplied that Minster Baywatch Ltd’s ANPR system is reliable


    The driver states that he/she does not remember the car ‘entering’ the car park at 08:47 on 11 October 2016 as alleged by Minster Baywatch Ltd but does remember turning the car around in the road (making a ‘three-point turn’) opposite the car park entrance after dropping off a passenger. The image taken from the ANPR camera shows clearly that the car had not fully entered car park at the time image was recorded: the car is pictured straddling statutory road markings (in this case double yellow lines) marked on the road outside the car park. The driver remembers returning to the car park approximately 45 minutes later; he/she parked and paid the appropriate fee for 3 hours parking.

    I put Minster Baywatch Ltd to strict proof that it has not photographed the vehicle merely turning in the road opposite the car park entrance. I further put Minster Baywatch Ltd to strict proof that it has not failed to record the vehicle entering on a second visit and leaving on a second or subsequent visit; it has not provided this.
    Minster Baywatch Ltd has provided no evidence to support their claim other than two still photographs showing an alleged entry and exit of the car park. I would like to draw to the adjudicator’s attention that there is a brewery warehouse opposite the car park entrance and therefore the approach road to the car park is frequently used by high-sided HGVs. It is entirely possible that, during one or more of the vehicle’s visits to this site on the day, the APNR system used by Minster Baywatch Ltd simply did not record that the vehicle entering/exiting the site as the vehicle was blocked from the camera’s view by a high-sided HGV. I put Minster Baywatch Ltd to strict proof to show that the vehicle was parked in the car park for the entire duration of the alleged ‘contravention’; as it has not done so, it has not provided evidence that a “first in, last out” has not happened. Without evidence that the vehicle was parked for the duration there can be no case.

    The operator is also obliged to ensure its ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's CoP. I therefore require the operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that Minster Baywatch Ltd produce evidence in response to these points and explain to POPLA how its system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the operator was ‘fundamentally flawed’ as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    Minster Baywatch Ltd has not provided any evidence to show that its system is reliable, accurate or maintained.

    7.
    Grace periods as mandated in BPA’s CoP were not stated nor adhered to


    British Parking Association Code of Practice 13.1 – 13.4 states:
    13 Grace periods
    13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
    13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
    13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

    Also, under the BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers
    “… decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (18.5).”

    Minster Baywatch Ltd have made no mention of the grace period they are required by the CoP to apply, neither on signage displayed in or around the car park, nor in the NTK issued, and they failed to apply it in considering my appeal.
    In this case, Minster Baywatch Ltd have not accurately recorded the time(s) when the car entered or left the car park (see section 6 above). At the time the driver was unable to consider the terms of the contract (which were impossible to read due to the extremely small print of the sign) and decline the offer. The mention of a minimum of 10 minutes is exactly this, a minimum. The time needed to complete all these actions are dependent on a number of wildly varying factors, including traffic, lighting conditions, driver’s eyesight and driving ability and mental faculties.

    Given that the operator has not provided evidence that the vehicle was parked in the car park for more than 10 minutes beyond the period of parking paid for, the Operator has issued this Parking Charge Notice incorrectly and my appeal must therefore be allowed.

    8. The charge of £100 plus a surcharge for debit/credit card payments exceeds the appropriate amount specified in law

    Minster Baywatch Ltd’s NTK informs me that payments made by credit/debit cards are subject to a surcharge. Arbitrary extra charges are disallowed under POFA, the Consumer Contracts (Information, Cancellation & Additional Payments) Regs 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.

    POFA 2012 states:
    Right to claim unpaid parking charges from keeper of vehicle:
    4 (5) “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...(less any payments towards the unpaid parking charges which are received after the time so specified).”

    The CC(ICAP) 2013 Regs state:
    Additional payments under a contract
    (40).—(1) “Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.”
    There was no ’express consent’ given in this case.


    I believe that this charge is unrecoverable from myself as registered keeper due to all or any of the above appeal points. This concludes my POPLA appeal.
    Last edited by BindiBahji; 31-10-2016 at 3:58 PM. Reason: formatting
    • BindiBahji
    • By BindiBahji 26th Nov 16, 11:51 AM
    • 59 Posts
    • 20 Thanks
    BindiBahji
    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?
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