PCN from Civil Enforcement Ltd for, literally, 3 mins time difference - ** SUCCESS!!*

boxingbantz

Ok thank you for the info.

I will get a picture of the signage and post tomorrow and then hopefully will be able to draw up my appeal.

boxingbantz

Here is a picture of the sign.

No mention of contract, just uses the word 'charge'.

Thoughts?

Would this be a right to appeal?

boxingbantz

Here is my appeal letter - grace period argument also added:

I, as the registered keeper, received an invoice from Civil Enforcement Ltd. requiring payment of a charge of £100 (discounted to £60 if paid within 14 days) for the alleged contravention of exceeding the duration of maximum stay permitted at xxxxxxx This issue date on the invoice is xxxxxxxx

As the registered keeper, I would like to appeal this notice on the following grounds:
1 Charge not a genuine pre-estimate of loss
2. The amount of the charge is disproportionate
3 No authority to levy charges
4. No Creditor identified on the Notice to Appellant
5. Signage
5. Unlawful Penalty Charge
6. ANPR Accuracy
7. Business Rates
8. No grace period
8. Summary

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £40 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA code of practice states: The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. I require CEL Ltd. to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


2. The amount of the charge is disproportionate
The amount of the charge is disproportionate to the loss incurred by CEL Ltd. and is punitive, contravening the Unfair Contract Terms Act 1997. There can have been no loss arising from this incident. Neither can CEL Ltd. lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. I therefore respectfully request that my appeal is upheld and the charge dismissed.


3. No authority to levy charges
A parking management company will need to have the proper legal authorization to contract with the consumer on the landowner’s behalf and enforce for breach of contract. CEL Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.
I believe there is no contract with the landowner/occupier that entitles CEL Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.

I put the CEL Ltd. to strict proof to POPLA that they have the necessary legal authorization at this location and I demand that the CEL Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the CEL LTD. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between CEL Ltd. and the owner/occupier, containing nothing that CEL Ltd. can lawfully use in their own name as a mere agent, that could impact on a third party customer.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. No Creditor identified on the Notice to Appellant
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to CEL Ltd., there is no specific identification of the Creditor who may, in law, be CEL Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. Signage
The sign at the entrance to the car park is positioned, high up on a pole. This makes the sign difficult for a driver to see from inside the car, regardless of which side of the road the entrance of the car park is approached from and even more so when, at 1900, there is darkness. The BPA Code of Practice at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background”.
I therefore respectfully request that my appeal is upheld and the charge dismissed


6. ANPR Accuracy
CEL Ltd. are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice, version 3 of June 2013. I require CEL Ltd. to present records as to the dates and times of when the cameras were checked, calibrated 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 my vehicle entering and exiting at specific times – it’s vital that CEL Ltd. produce evidence in response to these points. From 1900 on the date of the incident date, the car park is free for the first two hours. The driver entered the car park and, after reading the signs confirmed that the time was 1900 and that they were entitled to two hours free parking. I contest that the APNR equipment is NOT accurate and, with such a fine margin between when a charge is issued, I therefore respectfully request that my appeal is upheld and the charge dismissed

7. Business Rates
As this car park is now being used for the purpose of running a business CEL LTD., which is entirely separate from any other business the car park services, and generates revenue and profit for CEL LTD., I do not believe that CEL LTD. has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put CEL Ltd. to strict proof that they have so registered the business they are operating at xxxxxx with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.

8. No grace period given
The BPA code of practice states that:
“You should allow the driver a reasonable ‘grace period’
in which to decide if they are going to stay or go. If the
driver is on your land without permission you should still
allow them a grace period to read your signs and leave
before you take enforcement action.”

With two hours free parking from 1900 on the date of the offence, and with the PCN incident time recorded at xxxxx , there has clearly been no ‘grace period’ given to the driver in this instance. I contest that the driver, having parked in the car park, would have needed longer than xxxx seconds to park, exit the vehicle, locate the sign (in the dark), read the sign and then decide to stay in the car park. After the 3mins 38 seconds (from the time after the ANPR recorded the car entering the car park) the car parking ‘charge’ wouldn’t have been issued as the driver would have well within the free parking zone (two hours free parking after 1900 on a Sunday).

9. Summary
On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

Yours faithfully

Coupon-mad

You don't need paragraphs about 'disproportionate' charge nor 'business rates'. Not sure where that template keeps coming from with business rates on it!

You do need a paragraph about why the NTK isn't POFA2012 compliant and it is so much more than not naming the creditor. CEL do not comply with POFA2012 at all! There is no keeper liability and as keeper you should state that - because quite simply it is a slam dunk point. There are examples in 'How to win at POPLA' in post #3 of the NEWBIES sticky which are worded to suit, to say why a NTK is not 'properly given'.

boxingbantz

Coupon-mad wrote: »

You don't need paragraphs about 'disproportionate' charge nor 'business rates'. Not sure where that template keeps coming from with business rates on it!

You do need a paragraph about why the NTK isn't POFA2012 compliant and it is so much more than not naming the creditor. CEL do not comply with POFA2012 at all! There is no keeper liability and as keeper you should state that - because quite simply it is a slam dunk point. There are examples in 'How to win at POPLA' in post #3 of the NEWBIES sticky which are worded to suit, to say why a NTK is not 'properly given'.

Thanks for all for your help.

I am unable to find any examples of wording for NTK - believe me I have looked.

Any chance of pointing one out for me please?

Coupon-mad

As the registered keeper, I would like to appeal this notice on the following grounds:

1 The Charge not a genuine pre-estimate of loss
2. No standing to pursue charges in the courts nor to make contracts with drivers
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
4. Signage incapable of being read in the dark - no contract with driver
5. No grace period given despite signage and BPA CoP
6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
7. Unreasonable & Unfair Charge - a penalty that cannot be recovered


1. The Charge not a genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. The Notice to Keeper letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event by a driver who was fully authorised to be parked at that site.

The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

2. No standing to pursue charges in the courts nor to make contracts with drivers
CEL have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put Civil Enforcement to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between CEL and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not a managing agent nor retailer nor any facility on site which is not the landholder - and the contract must comply with paragraph 7 of the BPA CoP. Such a contract must show that this contravention can result in this charge at this car park and that CEL can form contracts with drivers in their own right and have the assignment of rights to enforce the matter in court in their name. A witness statement or site agreement will not suffice as evidence as these are generally pre-signed photocopies wholly unrelated to the contract detail and signed off by a person who may never have seen the contract at all. I insist that the whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged, and to see all terms and conditions, restrictions, charges, grace period and the locus standi of this operator.

3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). There is no payment due for a car parked from 7pm for less than 2 hours and the signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012..

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.

4. Signage incapable of being read in the dark - no contract with driver
The sign at the entrance to the car park is multi-coloured, non-reflective, unlit and positioned high up on a pole. The sign was not seen by the driver and would have been invisible in the dark, regardless of which side of the road the entrance of the car park is approached from. At 7pm, the car park was shrouded in darkness, as is shown from CEL's own evidence photo, and the sign was far too high to even be picked out by car headlights.

The BPA CoP at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

In addition, the terms & conditions are in particularly small font compared with the offer to park from 7pm for 2 hours for free. And the sign provides for 10 minutes grace by which any payment has to be made - and yet no grace period was allowed to this driver (see point 5 below). The sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.

5. No grace period given despite signage and BPA CoP
The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

With two hours free parking from 7pm offered, and with car caught on camera at the entrance apparently just 3 minutes earlier, there has clearly been no ‘grace period’ given to the driver in this instance. I contest that the driver would have needed longer than 3 minutes to drive further into the car park, find a space, park, exit the vehicle, lock the car, locate the sign (in the dark), try to read the sign and then decide to stay in the car park. The sign itself indicates a 10 minute grace period before customers must have paid any amount due, so the Operator is aware that enforcement cannot start immediately - and yet in this instance they have applied an immediate PCN with zero grace period.

6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
Because this Operator is actually trying to allege a 3 minute 'early arrival' contravention (I think!) I call into question the ANPR system accuracy. The time shown for first arrival at the entrance is just before 7pm and the whole contravention seems to hinge upon the accuracy of this clock. This would require an ANPR system with almost perfect manufacturer-stated accuracy which I contend is not the case.

So I require CEL to present records which prove:
- the Manufacturers' stated % reliability of the exact ANPR system used here.
- 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 images purporting to show my vehicle entering and exiting at specific times. CEL must show their ANPR system has a zero failure rate and zero buffering delay. I suggest that in the case of my vehicle arriving at this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped accurately.

BPA CoP paragraph 21 'Automatic number plate recognition' (ANPR):
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

CEL fail to operate the system in a 'reasonable, consistent and transparent manner'. There is no signage to 'inform that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent'. This camera farms the data from moving vehicles at the entrance & exit and is not there for 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any actual proof of a 'parking event' at all.

7. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered
The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.

It is unreasonable and an unfair contract term, to attempt to enforce charges immediately (before the car is even parked) in a car park with a 10 minute grace period advertised in the largest font on the sign. It is unreasonable and an unfair contract term, to enforce a charge where the signs are unlit and the actual t&cs, including the risk of a 'PCN' and the amount payable for breach, is unreadable. It is unreasonable and an unfair contract term, to enforce a charge alleging a car arrived at the entrance 3 minutes before 7pm, when any ANPR system will have a manufacturer's advised % failure rate stated within the user manual and there is no proof that the ANPR remote clock was correct.

This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

In the Unfair Terms in Consumer Contracts Regulations 1999:-
''5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.''

The Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''

It has recently been found by a Senior Judge in the appeal court that CEL's signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.

I put CEL to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted.

Yours faithfully

The_Deep

Whilst I admire your thoroughness CM, I cannot but think that you are using a sledge hammer to crack a nut. Had the OP employed a solicitor to write such a letter, it would have cost him/her hundreds of pounds, and for what, a half a day's pay.

There seems to be a desperateness about your approach, a win at all costs attitude.

Should we not be encouraging single issue appeals, or one or two of the others, I would suggest clock reliability or non compliance in this case, we all know that the adjudicator will go for losses, so why not force them to address other aspects of the weakness of the claimant's case?.

I have to ask, what is the purpose of this board? Is , is it to score easy wins, or is it to undermine the entire Industry.

If the OP is up for it, I suggest that he/she challenges non-compliance. Afeter their recent drubbing in court the knuckle draggers are hardly likely to want to face a judge in the near future.

Guys_Dad

The_Deep wrote: »

Whilst I admire your thoroughness CM, I cannot but think that you are using a sledge hammer to crack a nut. Had the OP employed a solicitor to write such a letter, it would have cost him/her hundreds of pounds, and for what, a half a day's pay.

There seems to be a desperateness about your approach, a win at all costs attitude.

Should we not be encouraging single issue appeals, or one or two of the others, I would suggest clock reliability or non compliance in this case, we all know that the adjudicator will go for losses, so why not force them to address other aspects of the weakness of the claimant's case?.

I have to ask, what is the purpose of this board? Is , is it to score easy wins, or is it to undermine the entire Industry.

If the OP is up for it, I suggest that he/she challenges non-compliance. Afeter their recent drubbing in court the knuckle draggers are hardly likely to want to face a judge in the near future.

It depends upon if you are a motorist facing a £100 charge or a dedicated anti-PPC regular who is actively fighting the PPCs on an ongoing basis.

Personally, I think getting the motorist help and off the charge is the main thing. After all it is MONEYSAVINGexpert.com, not wageawaronppcs.com, although if you can do both, great.

So, seeing if a single point might win has to come second to using previous winning mix of points.

IamNotAllowedToUseMyName

Guys_Dad wrote: »

It depends upon if you are a motorist facing a £100 charge or a dedicated anti-PPC regular who is actively fighting the PPCs on an ongoing basis.

Personally, I think getting the motorist help and off the charge is the main thing. After all it is MONEYSAVINGexpert.com, not wageawaronppcs.com, although if you can do both, great.

So, seeing if a single point might win has to come second to using previous winning mix of points.

At the risk of mega-thread drift, I understand Deep wanting to make test cases to force the industry to change, whereas Coupon has evolved a well-honed cover-all letter.

My position is that where posters are up for a fight, they should be encouraged to use the full range of complaints in parallel with getting a safe way of protecting their assets. At the moment some ridiculously small percentage of tickets go to appeal when most charges are genuinely excessive, regardless of gpeol or otherwise.

Two simple things would help: forcing members of BPA to properly address appeals rather than the scamming false denial, and then if someone ticks the "excessive charge" tick box on the POPLA appeal, that should automatically invoke the adjudicator to consider gpeol without the applicant needing to understand the legal technicalities, the ticketer should, after all, have its justification of charges ready to hand so it should not be a burden on a BPA member acting reasonably. That's another letter I shall be writing.

boxingbantz

Coupon-mad wrote: »

As the registered keeper, I would like to appeal this notice on the following grounds:

1 The Charge not a genuine pre-estimate of loss
2. No standing to pursue charges in the courts nor to make contracts with drivers
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
4. Signage incapable of being read in the dark - no contract with driver
5. No grace period given despite signage and BPA CoP
6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
7. Unreasonable & Unfair Charge - a penalty that cannot be recovered


1. The Charge not a genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated and how it was caused by this alleged 3 minute parking event.

2. No standing to pursue charges in the courts nor to make contracts with drivers
CEL have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put Civil Enforcement to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between CEL and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that CEL can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged, to see all terms and to show the grace period which the signage suggests should have been up to 10 minutes.

3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). There is no payment due for a car parked from 7pm for less than 2 hours and the signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012..

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.

4. Signage incapable of being read in the dark - no contract with driver
The sign at the entrance to the car park is multi-coloured, non-reflective, unlit and positioned high up on a pole. The sign was not seen by the driver and would have been invisible in the dark, regardless of which side of the road the entrance of the car park is approached from. At 7pm, the car park was shrouded in darkness, as is shown from CEL's own evidence photo, and the sign was far too high to even be picked out by car headlights.

The BPA CoP at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

In addition, the terms & conditions are in particularly small font compared with the offer to park from 7pm for 2 hours for free. And the sign provides for 10 minutes grace by which any payment has to be made - and yet no grace period was allowed to this driver (see point 5 below). The sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.

5. No grace period given despite signage and BPA CoP
The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

With two hours free parking from 7pm offered, and with car caught on camera at the entrance apparently just 3 minutes earlier, there has clearly been no ‘grace period’ given to the driver in this instance. I contest that the driver would have needed longer than 3 minutes to drive further into the car park, find a space, park, exit the vehicle, lock the car, locate the sign (in the dark), try to read the sign and then decide to stay in the car park. The sign itself indicates a 10 minute grace period before customers must have paid any amount due, so the Operator is aware that enforcement cannot start immediately - and yet in this instance they have applied an immediate PCN with zero grace period.

6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
Because this Operator is actually trying to allege a 3 minute 'early arrival' contravention (I think!) I call into question the ANPR system accuracy. The time shown for first arrival at the entrance is just before 7pm and the whole contravention seems to hinge upon the accuracy of this clock. This would require an ANPR system with almost perfect manufacturer-stated accuracy which I contend is not the case.

So I require CEL to present records which prove:
- the Manufacturers' stated % reliability of the exact ANPR system used here.
- 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 images purporting to show my vehicle entering and exiting at specific times. CEL must show their ANPR system has a zero failure rate and zero buffering delay. I suggest that in the case of my vehicle arriving at this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped accurately.

BPA CoP paragraph 21 'Automatic number plate recognition' (ANPR):
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

CEL fail to operate the system in a 'reasonable, consistent and transparent manner'. There is no signage to 'inform that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent'. This camera farms the data from moving vehicles at the entrance & exit and is not there for 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any actual proof of a 'parking event' at all.

7. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered
The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.

It is unreasonable and an unfair contract term, to attempt to enforce charges immediately (before the car is even parked) in a car park with a 10 minute grace period advertised in the largest font on the sign. It is unreasonable and an unfair contract term, to enforce a charge where the signs are unlit and the actual t&cs, including the risk of a 'PCN' and the amount payable for breach, is unreadable. It is unreasonable and an unfair contract term, to enforce a charge alleging a car arrived at the entrance 3 minutes before 7pm, when any ANPR system will have a manufacturer's advised % failure rate stated within the user manual and there is no proof that the ANPR remote clock was correct.

This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

In the Unfair Terms in Consumer Contracts Regulations 1999:-
''5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.''

The Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''

It has recently been found by a Senior Judge in the appeal court that CEL's signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.

I put CEL to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted.

Yours faithfully

Thank you SO much for this and helping me create a better appeal. That is absolutely superb and it is much appreciated!!