MET McDonalds Gatwick Airport

jonw1973

Hopefully final version! any comments, please?

POPLA CODE:


As the registered keeper of the vehicle, registration number , I wish to appeal against the parking charge issued by MET Parking Services.

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.

4. Not relevant land for registered keeper liability

5. Lack of photographic evidence and unreliable, unsynchronised and non-compliant ANPR system.

6. Unclear and non-compliant signage, forming no contract with drivers.


To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
MET Parking Services state in their letter of rejection that the parking charge represents a claim for liquidated damages. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require MET to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. MET cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, there is no loss to MET nor the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''


2. Contract with landowner - no locus standi
MET do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow MET to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013.

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. MET cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.


3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.
The Notice I have received, as the registered owner of the vehicle, makes it clear that MET is relying on Schedule 4 of the Protection of Freedoms Act 2012. MET has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be MET Parking Services or their client, their debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is.....”.

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, MET Parking Services has failed to establish keeper liability. In this case, the NTK has not been correctly 'given' under POFA2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is 'fundamental to establishing liability' for a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.'


4. Not relevant land for registered keeper liability.
I contend that this is not 'relevant land' as defined by the Protection of Freedoms Act 2012; therefore there is no keeper liability. It is land within the Airport boundaries and this Airport is known to have Bylaws and the right to 'registered keeper liability' is simply not available on land covered by local Bylaws. Railway or Airport land is generally not 'relevant land' under the definition within the POFA. The keeper puts the Operator to strict proof to POPLA that this particular area within the Airport boundaries is not covered by Statute or Byelaw and is 'relevant land' (as defined in Schedule 4 paragraph 3) because I believe it is not 'relevant land' at all.


5. Lack of photographic evidence and unreliable, unsynchronised, non-compliant ANPR system.
I call into question the reliability and compliance of the ANPR system because MET are relying on two pictures of a vehicle. The first picture shows a car and number plate of my car apparently entering the site. The second picture shows a car but with no number plate visible, hence it cannot be demonstrated that this is the same car exiting the same site. The registration plate is shown separately with no time attached to that image and no location identified in the dark.

So I require the Operator 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.

The 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 ParkingEye 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.

I suggest that in the case of my vehicle being in 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, and this is in addition to the missing time/location/number-plate evidence from the second photo. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put MET to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here.

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.


6. Unclear and non-compliant signage, forming no contract with drivers.
Due to their high position, the barely legible size of the small print, and the lack of any working lighting, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that MET are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

Coupon-mad

That should do fine - and we have seen MET cancel when they see that sort of POPLA appeal, recently.

The_Deep

Coupon-mad wrote: »

That should do fine - and we have seen MET cancel when they see that sort of POPLA appeal, recently.

I am not surprised, you have given them several mountains to climb.

Why not focus Popla's mind and just appeal on the "relevant land" aspect. If they reject it you can always raise it with the Chief Adjudicator.

Dear Sir,

I wish to bring to your attention an error in law in one of your Adjudicator's decisions ..."

Also, should DVLA be issuing RK details in cases such as this?

da_rule

I think the problem on appealing on one aspect alone is that they could prove it (with the exception of GPEoL). Take the example in this thread, if it turns out that either (a) McDonalds owns the car park, not the airport and it is not covered by bylaws or (b) The airport bylaws do not cover matters relating to parking, then POPLA may find that the land is relevant land.

If someone wants to take the risk and then continue fighting the matter that's up to them, but most people who come on here want the matter to be over, they don't want 'their day in court'.

The_Deep

It is true that many people shy away from confrontation, but there are some who are prepared to stand their ground.

Obviously I would not suggest that someone appeals not relevant land without doing their homework first. If you present to Popla a copper-bottomed case that that POFA does not apply, they would be foolish to rule against you.

prosnap

This should gee you up!




I won my appeal against Met today. (At Gatwick McDonalds)


As expected, they failed to provide anything to POPLA to support their case

jonw1973

Thank you for all the help and support. I filed the appeal online, how do you know if it has gone in correctly?

da_rule

You should have received an email confirming submission?

POPLA does have a character limit on their online submission form (they don't actually tell you). If I was you I would go back onto the website and load the full appeal up as a piece of evidence.

jonw1973

Thank you, now done that, but still no email confirmation!

da_rule

How long have you got left to appeal? It might be worth putting a copy in the post. Get proof of postage from the Post Office. Also, make sure that your reference number is on every page.