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  • FIRST POST
    • NinjaSparky
    • By NinjaSparky 29th Jun 17, 9:31 AM
    • 14Posts
    • 3Thanks
    NinjaSparky
    ParkingEye Aldi Biggleswade PCN
    • #1
    • 29th Jun 17, 9:31 AM
    ParkingEye Aldi Biggleswade PCN 29th Jun 17 at 9:31 AM
    Good morning everyone

    Thanks for the brilliant site, because of you guy's I've decided to stick-it-to-the-man and contest my PCN from ParkingEye. I used the advice given in the "Newbies Thread" to appeal to ParkingEye and have received my "unsuccessful" appeal letter with POPLA reference (When are the going to figure out that this is a win for us )

    I have a couple of questions about my POPLA appeal though. I have returned to the "Scene of the crime" and taken photographs of the signage. This includes a picture showing that the large sign at the entrance is actually over 15 meters away from the entry, all of the small signs are the smallest size as set out by BPA (450mm x 450mm) and of those signs 4 out of 5 are bent. 3 out of 5 are turned away from the direction of travel etc. etc. etc.

    My question is this. Do I include these in my POPLA appeal or do I ask ParkingEye to provide photo's of the signs and then submit my photo's as a rebuttal?

    Thanks for the great advice, you guys are amazing
Page 1
    • Umkomaas
    • By Umkomaas 29th Jun 17, 10:15 AM
    • 14,034 Posts
    • 22,042 Thanks
    Umkomaas
    • #2
    • 29th Jun 17, 10:15 AM
    • #2
    • 29th Jun 17, 10:15 AM
    Once you've submitted your POPLA appeal you can't add any new stuff, so an 'ambush' with photos that contradict what PE might submit won't work.

    Add your photos to your initial appeal, let PE rebut those. But the signage appeal point will be much more comprehensive than photos - there's a very derailed signage appeal section already written for you in the NEWBIES FAQ sticky, post #3. Use that (and photos). There are also a number of 'ready-writtens' for you to use too in the sticky. No need to reinvent the wheel.

    Let us see your draft before submission.

    But all of the above could be avoided. What have you done about complaining to Aldi's HO, where there is a specific parking department (no doubt set up to deal with the torrent of complaints we've seen over the past 4 years)? If you spent >£30 on the day, they're likely to cancel straight away. If you're a regular Aldi shopper, copy them past receipts/bank/cc statements to prove you're a good customer of theirs who they won't want to lose if they don't cancel this.

    Kick up a fuss on their Facebook page - it usually gets things moving in your direction.
    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.
    • NinjaSparky
    • By NinjaSparky 2nd Jul 17, 12:03 PM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    • #3
    • 2nd Jul 17, 12:03 PM
    • #3
    • 2nd Jul 17, 12:03 PM
    Thanks Umkomaas

    I'll put up a draft before I send it off.

    Unfortunately the parking area serves all the local shops (they've edited the sign by sticking a sticker over "Aldi only" that says "Local Shoppers Only") On the day in question the driver only went to the barber shop and doesn't spend much in Aldi.
    Last edited by NinjaSparky; 02-07-2017 at 4:43 PM.
    • Quentin
    • By Quentin 2nd Jul 17, 12:21 PM
    • 32,402 Posts
    • 16,497 Thanks
    Quentin
    • #4
    • 2nd Jul 17, 12:21 PM
    • #4
    • 2nd Jul 17, 12:21 PM
    Hopefully you are appealing as the keeper??

    You need to edit your post to remove details of who was driving.

    The ppcs monitor this forum and can use your posts against you
    • Coupon-mad
    • By Coupon-mad 2nd Jul 17, 12:58 PM
    • 48,929 Posts
    • 62,419 Thanks
    Coupon-mad
    • #5
    • 2nd Jul 17, 12:58 PM
    • #5
    • 2nd Jul 17, 12:58 PM
    Thanks Umkomaas

    I'll put up a draft before I send it off.

    Unfortunately the parking area serves all the local shops (they've edited the sign by sticking a sticker over "Aldi only" that says "Local Shoppers Only") On the day in question I only went to the barber shop and we don't spend much in Aldi.
    Originally posted by NinjaSparky

    Read this, they had to amend the sign because the Council would have prosecuted Aldi, if not:

    http://forums.moneysavingexpert.com/showthread.php?p=63761390#post63761390

    What's the accusation then? Overstayed the time allowed?

    Surely PE haven't retained the machines in Aldi to key your VRN in, and expect the 'local shoppers' to go into Aldi to do so...
    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.

    • NinjaSparky
    • By NinjaSparky 3rd Jul 17, 4:21 PM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    • #6
    • 3rd Jul 17, 4:21 PM
    • #6
    • 3rd Jul 17, 4:21 PM
    Hi Coupon-Mad

    Yes, the driver overstayed by a whole 18 minutes (I plan to query their grace periods) in an fairly empty car park. No, they don't have VRN keypads, thank goodness.

    I'm almost done with my appeal, it's looooong. 18 pages at last count, focusing mainly on signage and landowner authority (+ grace period) but with a bit of POFA, driver liability, keeper liability, ANPR misuse, NTK photographic evidence, parking period vs drive through time. double dipping etc.

    I found an interesting white paper article relating to ANPR as used by government agencies for various purposes, relation to how the setup of the cameras and external influences affect the accuracy and capture rate of the systems. They show an accuracy rate, with carefully setup cameras, of only 93%. Is this something that people could use?

    uhra.herts.ac.uk/bitstream/handle/2299/12527/The_effect_of_ANPR_Camera_Settings_on_System_Perfo rmance_RG_MR.pdf?sequence=2
    • Coupon-mad
    • By Coupon-mad 4th Jul 17, 11:34 AM
    • 48,929 Posts
    • 62,419 Thanks
    Coupon-mad
    • #7
    • 4th Jul 17, 11:34 AM
    • #7
    • 4th Jul 17, 11:34 AM
    I found an interesting white paper article relating to ANPR as used by government agencies for various purposes, relation to how the setup of the cameras and external influences affect the accuracy and capture rate of the systems. They show an accuracy rate, with carefully setup cameras, of only 93%. Is this something that people could use?
    uhra.herts.ac.uk/bitstream/handle/2299/12527/The_effect_of_ANPR_Camera_Settings_on_System_Perfo rmance_RG_MR.pdf?sequence=2

    Yes, I think the parking Prankster found that or a similar report a few years ago and at best, we know ANPR isn't reliable.

    Trouble is, POPLA don't listen to that argument; they've been told by the BPA that ANPR is unreliable and in the absence of proof otherwise (not just articles) they won't allow an appeal on that basis.
    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.

    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 3:27 AM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    • #8
    • 11th Jul 17, 3:27 AM
    • #8
    • 11th Jul 17, 3:27 AM
    Ok, so here goes
    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 3:33 AM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    • #9
    • 11th Jul 17, 3:33 AM
    • #9
    • 11th Jul 17, 3:33 AM
    Dear Sir/Madam
    Re: PCN No....
    POPLA Ref: ....
    Vehicle Registration: ...

    As the registered keeper of the above vehicle I wish to appeal the parking charge notice ParkingEye Limited has issued against it.

    I would like 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 parking charge itself.

    2.There is no evidence of Landowner Authority.

    3.Breach of BPA Code of Practice due to photographic evidence.

    4.Misuse of Automatic Number Plate Recognition (ANPR).

    5.No Keeper Liability.

    6.No Driver Liability.

    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

    a)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 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 industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    imgur.com/a/AkMCN

    It should also be noted that, while the operator makes much of the “ParkingEye Ltd v Beavis” case, this case was appealed for the following reasons and these reasons only:

    Paragraph 93: “Before Judge Moloney QC and before the Court of Appeal, Mr Beavis raised two arguments as to why he should not have to pay the £85 charge, namely that it was (i) unenforceable at common law because it is a penalty, and/or (ii) unfair and therefore unenforceable by virtue of the 1999 Regulations.”

    supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf

    Any other reason than these must be considered separately and the Beavis case does not set a precedent for ParkingEye to win all it’s cases except were these arguments are the only reasons put forward.

    It should also be noted that the Judges specifically did not abolish the penalty rule. Therefore in a totally dissimilar case to “ParkingEye Ltd v Beavis” such as this, where a contract has not been individually negotiated as the terms cannot be read and agreed upon, the Unfair Terms in Consumer Contracts Regulations 1999 still apply. As the signage will clearly be shown to be in breach of BPA CoP below, as well as specifically placed in a manner that makes the terms of any contract unreadable, no contract can be said to have been entered into with the keeper of the vehicle. If there is no contract then the Parking Charge Notice IS a penalty. If this is a penalty then it IS unfair and unenforceable.

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and!'agreement on the charge'!existed. Without this agreement and contract the penalty in this case would be deemed unconscionable and extravagant .

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are bent, distorted, faded and often turned away from view. They have been altered with stickers placed over certain sections of text. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.!

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed at the entrance either - i.e. with the sum of the parking charge itself in large lettering. It cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    b)There is no sign at the entrance, even though there is more than adequate space and even provision for a sign. The closest sign to the entrance is 15 meters away from the entry and over 2 meters high to the lowest point of the sign. The distance to the sign can be see below with measurements taken using Google maps built-in distance measuring tool. It can also be seen on the image that there is ample space to place parking signs directly to the left and right of the entrance. This is in direct violation to BPA’s CoP Paragraph 18.2: “A standard form of entrance sign must be placed at the entrance to the parking area. There may be reasons why this is impractical, for example:
    i.When there is no clearly defined car park entrance
    ii.When the car park is very small
    iii.At forecourts in front of shops and petrol filling stations
    iv.At parking areas where general parking is not permitted

    These reasons clearly don’t apply therefore there must be a entrance sign. The entrance is clearly marked “ENTRY” on the road and there is space to the left and right of this but no entrance sign.

    imgur.com/FiyfqMR

    The below photograph shows the provisions already in place to the left of the entrance for a sign but it has not been used.

    imgur.com/5GGW8pb

    In addition the closest sign to the entrance is placed to the left of the viewpoint of a driver. The entrance has two lanes of traffic crossing over from the right-hand-side which have right of way over the incoming traffic and none coming from the left due to a one way lane, therefore it is totally reasonable to assume that any driver would be concentrating on the traffic coming from the right and not looking left at the sign. This is in direct violation to BPA’s CoP Annex B: “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.” The photograph below shows how if driving straight into the car park the sign is completely to the left of the car and well above the roofline.

    imgur.com/bqfn9yt

    The below image edited from Google show the flow of traffic through the parking lot. It can be seen that a large portion of the car park is accessed by travelling straight or turning right therefore it cannot be assumed that a person would drive past this sign until they are leaving and even then it would be higher that the average roof.

    imgur.com/s0zRlhS

    c)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. 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 of the wording specifically pertaining to the “Parking Charge” seem to be no larger than a 36 point font size based on the fact that they are less than half the height of a £1 trolley token (22mm diameter coin). My apologies for the quality of the picture, the signs are over 2 meters from the ground to the bottom of the sign and difficult to reach, never-mind photograph.

    imgur.com/csbyM8O

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

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

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and!want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

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

    ''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 'Penalty Charge', placed over 2 meters high on a wall or pole, with other terms buried in far too crowded small print and legal jargon, 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 to be able to read the terms.
    This equates to a “best viewing distance” of 5 feet or 1.52 meters and a “maximum viewing distance” of 20 feet or 6.1 meters. As the signs are over 2 meters high and the average drivers eye height of 1.05 meters this equates to a difference of 0.95 meters. This would mean that, ignoring the fact that a sign viewed at an angle decreases is readability and ignoring the roofline of the car, the best viewing distance would be 1.2meters away from the pole. For someone to read the sign at its best viewing distance they would have to crash their car into the pole that the sign is mounted on and remove the cars roof.

    comparativegeometrics.wordpress.com/2014/07/02/values-for-driver-eye-height/

    imgur.com/hkJ3C3b

    d)The signs are spaced sporadically and even considering their maximum viewing distance large areas of the car park have no signs viewable.

    The below picture edited from Google maps shows the approximate location of the signs and the direction they are facing. Signs 1-5 are the smallest signs allowable by the BPA CoP measuring just 450mm x 450mm. Sign 6 is the closest sign to the entrance. It does not state anything about a penalty charge or indeed what that penalty charge is. Sign 7 is the only large format sign on site which displays the full terms of the parking lot, it is roughly 4 times the surface area of the other signs. It is still approximately 3 meters off the ground but the wording is legible from a reasonable distance away. Yet for some reason this sign is put around a corner where it is visible to only 8 or 9 parking spaces, this illustrates perfectly that these large, visible signs are available yet this industry chooses not to use them correctly. It is my opinion that on a site such as this all the signs should be a large format sign and there should be twice as many signs at least.

    imgur.com/ppW8Ma0

    The following pictures show the maximum viewing distance from each sign using Gogle maps in-built measuring tool. From these pictures it can be seen that the vast majority of the car park is not covered by these signs.

    The sign at position 1 can be seen at possibly 3 parking spaces. In addition it is bent and set even higher than most of the signs in the car park. Why is this sign placed right at the end of the parking lot. A large size sign placed midway down that length of wall would be far more visible.

    imgur.com/Pxvbz5F

    imgur.com/5myjqRm

    imgur.com/s9odsJt
    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 3:35 AM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    The sign at position 2 can be seen by a maximum of 6 parking spaced but as it is parallel to the spaces it could only be seen once the occupants have left their vehicle. In addition it is warped and the picture shows most clearly that there are stickers attached over the terms at the bottom and the “local shoppers only” at the top. The first photograph is taken from the end of the parking bay, just more that 6 meters away and the terms on the sign are clearly not legible. Why is this not a large format sign with another sign facing the opposite side of the pole so that is can be seen from both directions?

    imgur.com/wB1jzWp

    imgur.com/vLmHB69

    imgur.com/MuGlfAv

    imgur.com/Mz7B7ec

    Sign 3 is set parallel to the road and higher than the average roofline, over 2 meters from the floor to the bottom of the sign. As traffic flow past it is one way and takes up the entire width of the road it cannot be seen when driving past. It cannot be seen by cars parked across from it as they are to far away. This sign is visible to zero parking bays. Why is this not large format sign to make it visible from across the road. Why is is not placed at eye level where it can be read from inside a car, it is clearly not going to obstruct anything if it is lowered.

    imgur.com/PCz1yP7

    imgur.com/JQgbmhw

    Sign 4 might have been visible from four parking spaces however the sign has been bent and turned away from the majority of the car park. Why is there not a large format sign set against the back wall of this part of the car park, at eye level, to make it visible to all cars turning into this portion of the car park.

    imgur.com/t2PNRMr

    imgur.com/h14jpbf

    imgur.com/3kF71XY

    Sign 5 is visible to only 4 parking spaces but is bent and tuned away from the majority of the car park. Again, why is this not a large format sign turned towards the direction of travel and set at eye level.

    imgur.com/JVZSEwL

    imgur.com/TFW57Vo

    imgur.com/QKI15dY

    There are also no signs visible from the two pedestrian exits as shown in the photographs below.

    imgur.com/SuSWXGe

    imgur.com/hqt5q0c

    imgur.com/NhL47De

    imgur.com/ZIg9Vak

    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.''

    Under Lord Denning's Red Hand Rule, the charge 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 judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    bailii.org/ew/cases/EWCA/Civ/2000/106.html

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

    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.The signs in this car park are not prominent, clear or legible from all parking spaces.
    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 3:36 AM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    2.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 un-redacted 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. 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 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

    In addition to the above it is believed that there is some doubt as to the legitimacy of the agreement with the landowner as several news articles call into question the ownership of the area that ParkingEye regulates as well as a council order regarding the time restriction put in place by ParkingEye. There is also an area which is only accessible via the entrance to Bonds Lane car park but is clearly the loading bay of the Iceland supermarket in market square with additional parking spaces with it’s own boundary wall.

    biggleswadetoday.co.uk/news/firm-may-not-be-able-to-restrict-parking-1-3560332

    biggleswadetoday.co.uk/news/confusion-over-legality-of-aldi-parking-tickets-1-6878808

    imgur.com/cPbMw2c

    The operator is put to strict proof that they comply to all council orders and has proof that any and all land accessible through the entrance to the of the parking lot is owned by the landholder with whom they have an agreement.

    3.BPA Code of Practice - further non-compliance - photographic evidence.

    The BPA Code of Practice point 20.5a stipulates that:

    "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

    The parking charge notice in question contains two photographs of the vehicle number plate. Neither of these images contains a date and time stamp on the photographs.

    The time and date stamp has been inserted into the letter underneath and pasted on top of the photograph showing the vehicle, however they do not appear to be embedded into the photographs. The images have also been cropped to only display the car and do not clearly identify the vehicle entering and leaving this car park, there is no proof of where these photographs have been taken, no identifiable landmarks or marking and no entry or exit signs. As these are not the original images, I require ParkingEye to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.
    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 3:37 AM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    4.Misuse of Automatic Number Plate Recognition (ANPR).

    The signs fail to transparently warn drivers that ANPR is in use and what the 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.

    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. A symbol of a camera is not sufficient to inform the driver that this system is in place as this could easily be mistakenly taken as a sign that CCTV is in operation for security purposes. In addition the acronym ANPR is also not sufficient as no prior knowledge of the system can be assumed and the signage must be easily understandable. It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.

    ParkingEye signs do not comply with these requirements because these car park signage failed 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.

    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:

    legco.gov.hk/general/english/library/stay_informed_overseas_policy_updates/consumer_rights_act_2015.pdf

    (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/regulation/6/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.
    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 3:39 AM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    5.No Keeper Liability

    a)POFA 2012, paragraph 9(2)(a) states;

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

    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 or actual parking times and this cannot reasonably be assumed on the balance of probabilities, from two photos of a car in moving traffic, timed hours apart.

    The Notice to Keeper additionally did not ‘specify the land on which it was parked’ to which it related. The notice simply states “Aldi Biggleswade”. There are two separate car parks at Aldi Biggleswade with separate entrances and exits, and multiple parking spaces around Aldi Biggleswade that are not part of these car parks. Nor can the relevant land be deduced from the cropped photographs displayed. The parking spaces could have easily been specified in the PCN as “Aldi Biggleswade, Bond Street North parking space, SG18 8AY” or “ Aldi Biggleswade, Bond Street South parking space, SG18 8AY”, this has not been done.

    I put the operator to strict proof of the period of parking, that the times and dates shown on the photographs are correct and that the cameras were synced, adjusted and calibrated recently and to specify the the exact land on which it was parked, because this is a mandatory requirement for keeper liability also stated clearly in Schedule 4.

    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). In addition the ANPR system is inherently not 100% reliable as multiple factor can affect the performance of an ANPR system. In the following study done for Law Enforcement agencies in the UK the system was found to be only 93% accurate in a system specifically set up and calibrated for the test.

    uhra.herts.ac.uk/bitstream/handle/2299/12527/The_effect_of_ANPR_Camera_Settings_on_System_Perfo rmance_RG_MR.pdf?sequence=2

    As Aldi Biggleswade serves over 8,000 customer per week as per their statement to the Biggleswade town council, even ignoring customers who do not visit Aldi but still use the car park, that is over 560 cars per week, over 80 cars per day where the ANPR systems fails to register the car correctly

    biggleswadetowncouncil.gov.uk/Biggleswade-TC/UserFiles/Files/OSCP%20150512.pdf

    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

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

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

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

    britishparking.co.uk/Other-Advice#4

    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...'

    b)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, ParkingEye has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

    If ParkingEye 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 still not be lawfully able to be held liable, under Schedule 4:

    transportxtra.com/publications/parking-review/news/46154/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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

    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 mentioned above in the NTK as it fails to comply with POFA 2012 paragraph 9.

    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.
    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 3:41 AM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    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 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.''

    In Summary
    I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice, previous POPLA appeals and case law (ParkingEye Ltd v Beavis & Vine v London Borough of Waltham Forest) undoubtedly supports my appeal, which I submit should now be determined in my favour.
    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 4:19 AM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    So There it is, let me know what you guys think. It's 4am, I'm going to bed
    • Coupon-mad
    • By Coupon-mad 11th Jul 17, 2:48 PM
    • 48,929 Posts
    • 62,419 Thanks
    Coupon-mad
    Nice long appeal.

    Love this addition!


    ''For someone to read the sign at its best viewing distance they would have to crash their car into the pole that the sign is mounted on and remove the cars roof.''

    https://comparativegeometrics.wordpress.com/2014/07/02/values-for-driver-eye-height/

    http://imgur.com/hkJ3C3b





    The only picture I would think about removing would be this one, as it arguably supports their case and is quite close to the entrance, and visible:

    http://imgur.com/bqfn9yt
    Last edited by Coupon-mad; 11-07-2017 at 2:54 PM.
    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.

    • NinjaSparky
    • By NinjaSparky 11th Jul 17, 9:53 PM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    Thanks Coupon-mad

    I've taken it out and altered the relative text.

    I'll be uploading it soon to the POPLA site, wish me luck. I'll let you guys know how it goes
    • NinjaSparky
    • By NinjaSparky 26th Jul 17, 9:53 PM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    Evidence pack rebuttal
    So I've received notification from Popla that ParkingEye have submitted their evidence pack...

    I have not received any originals yet however I can access all the documents on the Popla website. It's a 50 page monstrosity without rhyme or reason. They have submitted the document twice forcing me to go through both with a fine toothed comb to ensure that they are the same.

    In addition they have submitted some of the photographs and webpages from my original appeal, including the "Parking Prankster" articles about the unreliability of ANPR. But they have made no comment about these webpages or photos stating why they have included them. It's a mess but gives me plenty of ammunition.

    So some quick questions.
    1. Do I copy ParkingEye into the email that I send to Popla?
    2. Do I write my rebuttal as an email or as a PDF attachment to the email? Or Both?
    3. I want to keep it concise but there is so much I need to refute, how much is too much? I'm at 3 pages already and I've only just gotten started.
    4. What do I type into the tiny 2000 letter space on the Popla appeals website?

    Thanks
    • NinjaSparky
    • By NinjaSparky 26th Jul 17, 9:59 PM
    • 14 Posts
    • 3 Thanks
    NinjaSparky
    When I get a chance I'll upload the Evidence pack, I just need to edit out all the personal details.
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