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  • FIRST POST
    • DC17
    • By DC17 13th Jun 17, 2:56 AM
    • 27Posts
    • 12Thanks
    DC17
    St Austell McDonald £100 PCN
    • #1
    • 13th Jun 17, 2:56 AM
    St Austell McDonald £100 PCN 13th Jun 17 at 2:56 AM
    Hi everyone,

    I want to thank in advanced all the time and effort done so far on this forum.

    I have gone thru newbies and FAQ.

    I have read numerous posts.

    I think I understand What to do but would still like to have a feedback before proceeding.

    What we need to know is,

    Was there a windscreen ticket? No
    Did the keeper receive a NTK? Yes
    What was the reason for the PCN/NTK being issued? Overstayed 17 minutes longer.
    Was this pay and display? No
    Was ANPR used? Yes


    Thank you Fruitcake. It was way to late and I guess after an overload of information I did the wrong thing. Thanks again.
    Last edited by DC17; 13-06-2017 at 10:25 AM. Reason: Advised that had put enough info for scammers.
Page 2
    • DC17
    • By DC17 15th Jul 17, 1:34 AM
    • 27 Posts
    • 12 Thanks
    DC17
    Popla appeal letter 1/2
    After long process I think I've reached a possible good result with this appeal.

    Open to suggestions/corrections.


    -------//---------
    As the registered keeper of the above vehicle, I wish to appeal the parking charge notice “MET PARKING SERVICES LIMITED” issued against it. I would like to have the parking charge notice cancelled based on the following grounds:


    1- 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 (Attachment A 3 pages)


    2- The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras. (Attachment B)

    3- No evidence of Landowner Authority


    4- No Keeper Liability


    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. (Attachment C)


    6- No Driver Liability


    7- Unprofessional conduct by the operator.


    1- The “contract” is not clearly stated on the signs of the car park. (followed by Attachment A)

    The reference to the Operator Parking Eye as others are now more than ever being put in cause, as recurrent cases of “non-technical actions” leading to false Parking Charge Notices.

    As the example of:

    http://forums.pepipoo.com/index.php?showtopic=113424&st=40

    (Attachment (PCP_Gladstone letter - FightBack Forums) and (GLADSTONE LETTER))


    “[…] you have had a minimum of four different occasions where you could have stopped this, but have chosen not to. You should have double checked before you contacted the DVLA in the first place. […] they are escalating the matter as a complaint, […] they have concluded their investigation, found they and Gladstone's were at fault, and included a cheque for £100 as compensation,”


    The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    imgur.com/a/AkMCN

    (Attachment (Supreme Court Beavis case 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.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:


    http:\2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

    (Attachment ('Beavis case' sign))

    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, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. 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 full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    (Attachment (FONT GUIDE))

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    (Attachment (Sign Letter Height Visibility Chart))


    ''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.''

    ...and the same chart is reproduced here:

    ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    (Attachment (Outdoor Dimensional Sign Letter Best Viewing Distance))

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    (Attachment (Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 (5 April 2000))

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


    2- The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras. (Attachment B)

    The misleading information between McDonald’s (the landowner) and the operator (has proprietary interest in the land) about CCTV vs ANPR.





    “24 hour CCT recording in operation

    FOR SAFETY AND SECURITY
    PURPOSES CCTV IS OPERATED ON
    THESE PREMISES AN MAY INCLUDE
    AUDIO AND OFF SITE MONITORING

    THE ORGANISATION RESPONSIBLE FOR THE
    SYSTEM IS McDONALD’S RESTAURANTS LIMITED
    OF 11- 59 HIGH ROAD, LONDON N2 8AW
    TELEPHONE 08705244622”

    Please notice the terms (“FOR SAFETY AND SECURITY”, “CCTV”, “OFF SITE MONITORING”, “THE ORGANISATION RESPONSIBLE FOR THE
    SYSTEM IS McDONALD’S RESTAURANTS LIMITED”)

    VS










    “Patrols and/or automatic number plate recognition (ANPR) camera monitor vehicle activity
    In this private car park. Photographic and video evidence may be taken and surveys may be
    carried out. Please note that you may receive a parking charge notice for contravening any
    terms and conditions of use, which will require the payment of a parking charge.
    […]
    This site is operated by MET Parking Services Limited
    PO Box 64168, London, WC1A 9BE
    Web: www.metparking.com Tel: 0207 118 8003
    Company No. 5468096
    Registered in England & Wales
    Registered Office:
    125 London Wall, London, EC2Y 5AL
    […]
    Car park may be monitored by ANPR/CCTV systems.”

    Please notice the terms (“(ANPR) camera monitor vehicle activity
    In this private car park”, “This site is operated by MET Parking Services Limited”)


    It’s clear that seeing a symbol on a sign that you can’t read in a car park and then by the entrance a sign that you can read and with a McDonald’s symbol, with different information about the same system is case for dismissal on the basis of non-conforming with the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras in a clear way.




    Paragraph 21.1 of the British Parking Association Code of Practice (CoP) 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 CoP 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.

    MET PARKING SERVICES LIMITED signs do not comply with these requirements because this car park signage failed to notify the driver 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 clear that the cameras are not for security but are there in order to calculate 'total stay'.

    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 about the commercial (not security) purpose of the 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':

    legislation.gov.uk/uksi/2008/1277/contents/made

    (Attachment (The Consumer Protection from Unfair Trading Regulations 2008))

    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.''

    It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park. (Attachment B)


    ------//------ 
    (Popla appeal letter 1/2)
    Last edited by DC17; 15-07-2017 at 1:40 AM. Reason: Upload image.
    • DC17
    • By DC17 15th Jul 17, 1:36 AM
    • 27 Posts
    • 12 Thanks
    DC17
    Popla appeal letter 2/2
    (Popla appeal letter 2/2)


    ------//-------
    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."

    -------//-------

    Thank you for taking the time and for contributing.
    • The Deep
    • By The Deep 15th Jul 17, 7:09 AM
    • 6,849 Posts
    • 5,868 Thanks
    The Deep
    Phew, a heavy meal for a short overstay in a fast food outlet. What a waste of time.

    Have you not written some bad stuff on their Facebook/TripAdvisor pages? It often works. Is there any aspect which may be of interest to Trading Standards, are all their signs/permissions kosher?
    You never know how far you can go until you go too far.
    • Umkomaas
    • By Umkomaas 15th Jul 17, 8:08 AM
    • 14,040 Posts
    • 22,058 Thanks
    Umkomaas
    ~5,800 word appeal. More than 15 pages of A4 paper. I feel sorry for the POPLA Assessor.

    Proportionate?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • The Deep
    • By The Deep 15th Jul 17, 8:34 AM
    • 6,849 Posts
    • 5,868 Thanks
    The Deep
    However, with that amount of argument the Assessor is likely to find at least one point with which he/she agrees, It is the PPC who will have to do all the work. I expect they will cop out.
    You never know how far you can go until you go too far.
    • Umkomaas
    • By Umkomaas 15th Jul 17, 8:52 AM
    • 14,040 Posts
    • 22,058 Thanks
    Umkomaas
    Probably. But the kitchen sink appeal seems to now include incorporating the bathroom too.

    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.

    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.

    I much preferred your POPLA draft TD.
    Last edited by Umkomaas; 15-07-2017 at 8:57 AM.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • DC17
    • By DC17 15th Jul 17, 9:17 AM
    • 27 Posts
    • 12 Thanks
    DC17
    Phew, a heavy meal for a short overstay in a fast food outlet. What a waste of time.

    Totally agree. But one thing is for sure. Friends and family will no longer need to plough through hour and hours of posts.

    Have you not written some bad stuff on their Facebook/TripAdvisor pages? It often works. Is there any aspect which may be of interest to Trading Standards, are all their signs/permissions kosher?
    Originally posted by The Deep
    I had a word directly with the manager and he is threatened by the operator, if he asks to cancel after the day the restaurant has to pay for the charge. So no result, like it worked on previous posts.

    Thank you for your reply.
    • DC17
    • By DC17 15th Jul 17, 9:31 AM
    • 27 Posts
    • 12 Thanks
    DC17
    ~5,800 word appeal. More than 15 pages of A4 paper. I feel sorry for the POPLA Assessor.

    Proportionate?
    Originally posted by Umkomaas
    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.
    • DC17
    • By DC17 15th Jul 17, 9:32 AM
    • 27 Posts
    • 12 Thanks
    DC17
    However, with that amount of argument the Assessor is likely to find at least one point with which he/she agrees, It is the PPC who will have to do all the work. I expect they will cop out.
    Originally posted by The Deep
    That's also my point of view. Out of 7 points one should be accepted.

    Thank you again.
    • DC17
    • By DC17 15th Jul 17, 9:42 AM
    • 27 Posts
    • 12 Thanks
    DC17
    Probably. But the kitchen sink appeal seems to now include incorporating the bathroom too.
    Originally posted by Umkomaas
    Hopefully I'm digging a hole deep enough for the operator and not myself.

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

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

    I much preferred your POPLA draft TD.
    Originally posted by Umkomaas
    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.
    • Umkomaas
    • By Umkomaas 15th Jul 17, 10:03 AM
    • 14,040 Posts
    • 22,058 Thanks
    Umkomaas
    Hopefully, when yours is all over, you'll come back and offer regular daily advice to others going through the same process?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • Coupon-mad
    • By Coupon-mad 15th Jul 17, 12:27 PM
    • 48,960 Posts
    • 62,446 Thanks
    Coupon-mad
    That's also my point of view. Out of 7 points one should be accepted.

    Thank you again.
    Originally posted by DC17
    It will. I love the picture of the sign among foliage.

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • DC17
    • By DC17 15th Jul 17, 3:06 PM
    • 27 Posts
    • 12 Thanks
    DC17
    It will. I love the picture of the sign among foliage.

    Originally posted by Coupon-mad
    Yes, hopefully the assessor can see just by the pictures that the (So called “The terms and conditions of parking clearly stated on signs that are prominently displayed […]”) aren't so clear.

    Thanks for sharing.
    • DC17
    • By DC17 15th Jul 17, 3:13 PM
    • 27 Posts
    • 12 Thanks
    DC17
    So if there are no apparent issues I'll submit my appeal tomorrow.
    Can anyone tell me how long usually for a decision?

    Thank you.
    • Umkomaas
    • By Umkomaas 15th Jul 17, 3:15 PM
    • 14,040 Posts
    • 22,058 Thanks
    Umkomaas
    So if there are no apparent issues I'll submit my appeal tomorrow.
    Can anyone tell me how long usually for a decision?

    Thank you.
    Originally posted by DC17
    5-6 weeks, unless MET cave earlier.

    (Could be much longer if they read every word!)
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • DC17
    • By DC17 15th Jul 17, 3:18 PM
    • 27 Posts
    • 12 Thanks
    DC17
    5-6 weeks, unless MET cave earlier.

    (Could be much longer if they read every word!)
    Originally posted by Umkomaas
    Thank you.
    Well half of the point is to intimidate the reader with the amount of paperwork.
    The second half is to have a dismissal with a possibility of compensation.
    • Umkomaas
    • By Umkomaas 15th Jul 17, 5:12 PM
    • 14,040 Posts
    • 22,058 Thanks
    Umkomaas
    The second half is to have a dismissal with a possibility of compensation.
    Care to tell us more?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • DC17
    • By DC17 15th Jul 17, 5:24 PM
    • 27 Posts
    • 12 Thanks
    DC17
    Care to tell us more?
    Originally posted by Umkomaas
    Following hundreds of posts I have came across a few people that have received compensation.

    Example

    (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/)

    They received 100£. Different circumstances but the principle is still the same.
    The distressed cause is still significant to the point of having grounds for compensation.
    Plus the fact that if they do cave and pay, it's another positive point for the next person.
    And if they don't cave or pay, it still shows that people are prepared do go further and not let them get away with all sorts of "irregular activities". And might deter them on the next case.(we live in hope.)

    Thank you
    • Umkomaas
    • By Umkomaas 15th Jul 17, 5:34 PM
    • 14,040 Posts
    • 22,058 Thanks
    Umkomaas
    I don't know if you've read the Parking Prankster blogs, but if you Google 'Parking Prankster DPA breach' it will bring up three or four successful cases. The main reason for claims was for a breach of the DPA (causing distress), but not causing stress per se.

    So if you're ultimately to go for this, you need the right peg to hang your hat on.

    To my knowledge there have been no more successful DPA breach cases than those already blogged by PP. But I understand some are in the pipeline for pursuit later this year - it's early days in respect of pursuing this action against the private parking industry, so maybe keep your powder dry to see more outcomes. You have 6 years in which to make a claim.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • DC17
    • By DC17 15th Jul 17, 6:26 PM
    • 27 Posts
    • 12 Thanks
    DC17
    I don't know if you've read the Parking Prankster blogs, but if you Google 'Parking Prankster DPA breach' it will bring up three or four successful cases. The main reason for claims was for a breach of the DPA (causing distress), but not causing stress per se.

    So if you're ultimately to go for this, you need the right peg to hang your hat on.

    To my knowledge there have been no more successful DPA breach cases than those already blogged by PP. But I understand some are in the pipeline for pursuit later this year - it's early days in respect of pursuing this action against the private parking industry, so maybe keep your powder dry to see more outcomes. You have 6 years in which to make a claim.
    Originally posted by Umkomaas
    Yes I read the PP, MSE, Saga, CAB, PC, PPP (among other) posts. As well as law sites and previous cases. Exceptions, rules and mistakes, many mistakes...

    In "http://www.financial-ombudsman.org.uk/publications/technical_notes/distress-and-inconvenience.htm" as many other Ombudsman sites for different areas says:

    "As well as looking at whether someone’s lost out financially as a result of a mistake, it’s important to recognise the emotional or practical impact it’s had. This “non-financial” impact could be:

    distress – including embarrassment, anxiety, disappointment, loss of expectation, upset and stress. There may be some overlap with pain and suffering (see below) – for example, if the distress made someone ill;
    inconvenience – including the time someone’s spent and/or effort they’ve had to go to as a result of a business’s mistake;
    pain and suffering –including physical or mental suffering arising from what a business has done; or
    damage to reputation – where someone’s personal reputation has been negatively affected as a direct result of a business’s actions."

    "Occasionally, we decide that the time someone has spent trying to resolve their complaint means they should be awarded compensation for their time."

    "When we’re thinking about how someone’s been affected by a business’s mistake, we’ll also look at how much they did to try and minimise the impact of what happened.

    If we think someone could have lessened the impact in some way, we might say it’s fair to award slightly less compensation. But we always bear in mind that the consumer shouldn’t have had to deal with the business’s mistake in the first place."

    After a dismissal from POPLA there are grounds to pursue some sort of compensation.

    Let's see the appeal's decision first.

    Fingers crossed.

    I'll keep in touch.
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