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  • FIRST POST
    • ParkingBad
    • By ParkingBad 26th Sep 17, 12:51 AM
    • 20Posts
    • 5Thanks
    ParkingBad
    Elite Management Midlands Ltd Appeal
    • #1
    • 26th Sep 17, 12:51 AM
    Elite Management Midlands Ltd Appeal 26th Sep 17 at 12:51 AM
    Hi guys,

    So I know someone who gets parking charges quite often and always pays up. So i thought i'd give the appeals process a shot on behalf of this individual. Worst case scenario he/she pays up anyway, maybe a bit extra with the added fees if it comes to that.

    So long story short, the PCN was sent by Elite Management Midlands Ltd so I used the template from the newbies thread and sent off the appeal. Got the following response from them.


    "Thank you for your appeal, your comments have been noted accordingly.

    Please note that under the Protection of Freedoms act 2012 (POFA 2012), if the drivers details are not provided, the keeper will remain liable. The vehicle was parked on private land without authorisation from the land owner which is clearly advised on the signage approved by the British Parking Association (BPA).

    If you were not the driver of the vehicle at the time of the contravention, we suggest providing the drivers details so that liability can be transferred

    The outstanding balance of £100 remains due. Without payment or the drivers details, the account will progress and further charges may apply.

    Kind regards


    I'm confused as to where i go from here? i was expecting a POPLA code at the very least but nothing of that nature. Seems as though they just want the drivers details or payment? Obviously not going to provide that but how do i proceed further from here. Any help would be greatly appreciated! Thanks
Page 1
    • KeithP
    • By KeithP 26th Sep 17, 12:59 AM
    • 4,734 Posts
    • 3,074 Thanks
    KeithP
    • #2
    • 26th Sep 17, 12:59 AM
    • #2
    • 26th Sep 17, 12:59 AM
    Ignore that and wait patiently for your POPLA code.
    .
    • ParkingBad
    • By ParkingBad 26th Sep 17, 1:17 AM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    • #3
    • 26th Sep 17, 1:17 AM
    • #3
    • 26th Sep 17, 1:17 AM
    I remember when i had a PCN of my own a few months back, i didnt do my research prior to my appeal and told the company i was the driver. My appeal was rejected straightaway and was given a POPLA code.

    No details of the driver were given in this appeal and it seems as though they are delaying the POPLA code to see if i provide driver details or pay up or is this normal practice?. Am i right in thinking its safe to ignore them until they provide a POPLA code?
    • Coupon-mad
    • By Coupon-mad 26th Sep 17, 1:20 AM
    • 51,711 Posts
    • 65,364 Thanks
    Coupon-mad
    • #4
    • 26th Sep 17, 1:20 AM
    • #4
    • 26th Sep 17, 1:20 AM
    Ignore that and wait patiently for your POPLA code.
    Originally posted by KeithP
    I agree, this is a standard tactic, ignore it or choose to reply ''give me my POPLA code or I will report you to the BPA and DVLA''!
    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.

    • ParkingBad
    • By ParkingBad 26th Sep 17, 1:30 AM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    • #5
    • 26th Sep 17, 1:30 AM
    • #5
    • 26th Sep 17, 1:30 AM
    Thanks guys, i'll ignore it and bump this thread when there is an update
    • nosferatu1001
    • By nosferatu1001 26th Sep 17, 10:32 AM
    • 1,159 Posts
    • 1,178 Thanks
    nosferatu1001
    • #6
    • 26th Sep 17, 10:32 AM
    • #6
    • 26th Sep 17, 10:32 AM
    Which is that you have your rejection letter with POPLA code, and your POPLA appeal is now...

    As you should already be drafting it
    • KeithP
    • By KeithP 26th Sep 17, 11:57 AM
    • 4,734 Posts
    • 3,074 Thanks
    KeithP
    • #7
    • 26th Sep 17, 11:57 AM
    • #7
    • 26th Sep 17, 11:57 AM
    Am i right in thinking its safe to ignore them until they provide a POPLA code?
    Originally posted by ParkingBad
    Isn't that what I said earlier?
    .
    • ParkingBad
    • By ParkingBad 26th Sep 17, 7:32 PM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    • #8
    • 26th Sep 17, 7:32 PM
    • #8
    • 26th Sep 17, 7:32 PM
    So after reading through a few threads and a bit of digging online, I have come to realise that EMM are now members of the IPC, since 14/08/17. Is this why they havent generated my POPLA code?

    PCN contravention date is 25/08/17. They are still down as members of BPA and I've already appealed to them using the BPA template and the response i got from them has been copied into post #1
    • Redx
    • By Redx 26th Sep 17, 7:37 PM
    • 16,895 Posts
    • 20,997 Thanks
    Redx
    • #9
    • 26th Sep 17, 7:37 PM
    • #9
    • 26th Sep 17, 7:37 PM
    so follow the IPC advice from that NEWBIES sticky thread

    and IGNORE them , unless they send an LBC (or an MCOL from Northampton) within 6 years
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • ParkingBad
    • By ParkingBad 26th Sep 17, 7:44 PM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    so follow the IPC advice from that NEWBIES sticky thread

    and IGNORE them , unless they send an LBC (or an MCOL from Northampton) within 6 years
    Originally posted by Redx
    Following the IPC advice from newbies thread means appealing using the IPC template. I'm guessing this is probably a bit daft as I've already appealed using BPA template, do I now send off the IPC template to them? lol
    • Redx
    • By Redx 26th Sep 17, 7:46 PM
    • 16,895 Posts
    • 20,997 Thanks
    Redx
    nope. you appealed , they rejected, nothing more to add

    the fact you used the wrong template doesnt really matter too much

    an appeal is an appeal, and most companies reject appeals anyway
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • ParkingBad
    • By ParkingBad 2nd Oct 17, 10:09 PM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    So I've been keeping a look out for any post or emails just incase there is any further development to this situation. Nothing of that sort since their last message which is pasted into the first post. I've logged in to the online account and seen that they have increased the parking charge? from £100 its now nearly £200 + whatever the card surcharge is. No doubt they have another letter out to me but is this whats going to happen? extra charges just piling up? starting to doubt whether or not ignoring them is actually going to help me
    • ParkingBad
    • By ParkingBad 9th Oct 17, 7:16 PM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    EMM passed on my details to their debt agency ZZPS. The charged was bumped up to £172.
    No rejection to my appeal and no POPLA code.

    As the PCN i received had BPA basically written all over it i sent off a complaint about the events that have unfolded so far. Received a response stating EMM are no longer members of the BPA.

    I then contacted EMM explaining what BPA said and they responded saying they are BPA members?? They have now even provided me a POPLA code lol.

    EMM also mentioned that the letter i received from the debt agency ZZPS was in error!
    The charge has now gone back to £100. Surely this is a misuse of my personal data?
    • Redx
    • By Redx 9th Oct 17, 7:22 PM
    • 16,895 Posts
    • 20,997 Thanks
    Redx
    only if you can get the DVLA and the ICO to agree with you

    meanwhile, if you have a popla code , draft a popla appeal like you were told earlier

    they may well be members of both trade bodies, many are, the difference is in the shape of the logo (so they are probably corporate members of both trade bodies, hence they could have a valid membership)

    for appeals , we talk about which AOS they subscribe to , totally different

    so as you have a popla code, get drafting and use it

    you can worry about DPA issues and membership issues much later down the track as you have 6 years to bring a DPA court claim (with proof of course)
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • andytaylor
    • By andytaylor 9th Oct 17, 9:06 PM
    • 24 Posts
    • 17 Thanks
    andytaylor
    No doubt they have another letter out to me but is this whats going to happen? extra charges just piling up? starting to doubt whether or not ignoring them is actually going to help me
    Originally posted by ParkingBad
    Assuming they are fully POFA compliant, the Keeper can only be liable for the amount on the original Notice to Keeper (in your case £100). Even if you lost in court, the total should be under £200.
    • ParkingBad
    • By ParkingBad 23rd Oct 17, 10:29 PM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    going to start drafting up the popla appeal not got long before it needs to be submitted. just wanted to know, if i use "poor signage" do i have to attach pics? i wasnt the driver and after speaking to the driver about signage i have been told there are signs up but the driver has parked there many times previously without a pcn being issued so didnt think it would be a problem.
    • Coupon-mad
    • By Coupon-mad 23rd Oct 17, 11:57 PM
    • 51,711 Posts
    • 65,364 Thanks
    Coupon-mad
    No need to embed pictures to the template 'unclear signs' POPLA wording as it already shows photos and links about signs.

    However, if you have a damning one, like a sign covered in leaves or obscured by vans, or a pic of the entrance showing NO signs at all, certainly embed it in the word document and add a line to explain it.
    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.

    • ParkingBad
    • By ParkingBad 27th Oct 17, 7:24 PM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    POPLA draft
    Hi guys,

    So below is my attempt at the POPLA appeal.
    Basically just a copy and paste from other templates.
    Surely the assessors must be tired reading the same each time? lol
    Would appreciate input on anymore more points i can add to this as it seems pretty basic.

    A notice to keeper was issued on XXXX and received by me, the registered keeper of XXXX for an alleged contravention of “parking without permission of the landowner” at XXXX. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

    1. Inadequate signage.
    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
    3. No evidence has been provided to support that the ANPR system is reliable
    4. No evidence of Landowner Authority



    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

    There was neither 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 was keen to point out the decision related to that car park and those facts only:

    LINK

    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:

    LINK

    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 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 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:

    LINK

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

    LINK

    ''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 sale 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:

    LINK

    ''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:

    LINK

    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.

    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.

    Elite Management Midlands Ltd signs do not comply with these requirements because the 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.

    It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.



    3. No evidence has been provided to support that the ANPR system is reliable.

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



    4. 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. 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
    • ParkingBad
    • By ParkingBad 27th Oct 17, 7:33 PM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    Unless I'm mistaken, i cant mention the points about:

    Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used
    The operator has not shown that the individual who it is pursuing is in fact liable for the charge

    As the PCN does state they have the right to recover any unpaid charge from keeper after 29 days and NtK was issued within 7 days of the contravention.

    Should i mention something about when passing my details on to debt recovery (post 13 above) and then accepting it was an error?
    • ParkingBad
    • By ParkingBad 29th Oct 17, 9:30 AM
    • 20 Posts
    • 5 Thanks
    ParkingBad
    Hi guys, sorry to bump this, any chance i can get some feedback on the popla draft. Its due in next week and today is pretty much the only day i have spare to make any significant changes. Thanks
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