Pizza Hut Parking Charge Notice

RobinHill

RE: POPLA verification code NNNNNNNNNN dated DD/MM/YYYY

I was the hirer of the vehicle involved and despite our details having been provided to the Operator in due time by both the hire co. and ourselves, they continued to harass the hire company dismissing their non-existent appeal and issued a POPLA code to them. The hire company has passed the Notice and POPLA Code onto me. As the hirer this meets the definition of ‘Keeper’ in the PoFA 2012. However the driver has not been identified. As the hirer / keeper under the PoFA I wish 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 a punitive charge, denoted by the wording on the signs that the terms apply in order to 'deter abuse', and as such the charges must be in relation to damages. They must therefore reflect the financial loss suffered by the Landowner. I put Civil Enforcement Ltd, the ‘Operator’ / parking company to strict proof of the alleged loss including a detailed breakdown of how the amount of the ‘charge’ was calculated. 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
The Operator has 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 the Operator 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 the Operator 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 the Operator 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 `or 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 hirer/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 7am to 6pm for less than 2 hours. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of PoFA2012.

Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor" must
be named, but “identified”. To “identify” a “Creditor” a parking company must do more
than name that person. The driver is entitled to know the identity of the party with
whom he has legally contracted. This view is supported by the Secretary of State for
Transport. He has reserved to himself powers to make regulations to specify not only
what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.
He says “The purpose of this power is to leave flexibility to mandate the specific
evidence which must accompany a Notice to Keeper if it becomes clear that creditors
are attempting to recover parking charges without providing keepers with sufficient
evidence to know whether the claim is valid”

The charge notice incident date is 18/10/2014 and issue date 31/10/2014. The schedule extract attached below describes the time limits for 'delivery' of the notice. Given an issue date of 31/10 and paying attention to 'have been delivered on the second working day after posting' (assuming 31st at the earliest). This takes us to 04/11 which is 17 days from 18/11. We conclude that the notice was delivered after the duration permitted under Schedule 4.

Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either:

Where no notice to driver has been served (e.g ANPR is used) Not later than 14 days after the vehicle was parked. A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose ‘working day’ means any day other than a Saturday, Sunday or a public holiday in England and Wales.

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 difficult to see in the failing light. At the time the car park was becoming dark 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 for 2 hours free from 7am to 6pm, and 3 hours free from 6pm to 12am. 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 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 7am to 6pm, and 3 hours free 6pm to 12am offered, and with car caught on camera at the entrance apparently just 13 minutes earlier, there has clearly been insufficient ‘grace period’ given to the disabled occupant in this instance with regard to their rights afforded under the Equality Act, In particular ‘a reasonable adjustment of time’. Not withstanding any other non-parked activities, given that we were presented to our table at 18:04 without any delay by Pizza Hut, I contest that the disabled occupant would need at least 15 minutes extra to exit the vehicle, in addition to the driver being able to locate the sign, try to read the sign and then decide to stay in the car park. In this instance they have applied an immediate PCN with zero grace period.

6. ANPR records are unreliable and not proof of one parking event.
I call into question the ANPR system accuracy. There were three vehicles in the party of 13 people visiting the complex. The time shown for first arrival at the entrance was 17.46.34, the second vehicle 17.46.36. However the third vehicle which arrived first received no notice.

The charge is founded entirely on ANPR photos of the vehicle entering/leaving the complex at specific times. I put the Operator to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA says: ''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 Operator shows no parking photographs and nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if the vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 2 hours. There is a drive through on the same site, so I put the Operator to strict proof of actual parking for over two hours with no other activity. Even if the car first drove past the cameras and though the car park it is more than possible that the driver may have decided to use the drive-through facility and so 'parking' for over two hours would not have occurred. The Government rules require a full two hours free parking to allow a driver to rest. So I require the Operator to rebut these assertions.

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is even accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:
''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.''
The Operator fails to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed 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' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

The Operator fails to operate the system in a 'reasonable, consistent and transparent manner'. 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 without a grace period. 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.

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 the Operator'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.

Conclusion
The Operator has not met the keeper liability requirements and therefore keeper liability does not apply. The Operator can therefore only pursue the driver. As the hirer / keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

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

For the reasons set out above, the Appellant respectfully invites the Adjudicator to
allow the appeal.

Yours faithfully

RobinHill

Cheers Coupon-mad,

We have been finalising the POPLA document. Could you check a last few points for us please. The first below is pretty much copy template stuff but we aren't sure that we have applied it correctly. Our NtK (as posted previously) states "Maximum parking allowance exceeded". We can only think to remove the section below, can you suggest a re-wording?

Point 3 parag. 2 "Also, as hirer/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 7am to 6pm for less than 2 hours. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of PoFA2012."

Sorry if I sound silly but should / do I identify myself to POPLA (ie. name and address), or will this come out in the wash from CEL? Does the document need to be signed / named?

We have gone through it as well as we can and other than the above I think that we are finally ready to submit it to POPLA.

Thank you.

Umkomaas

I haven't gone back through the 70-odd posts preceding your lengthy POPLA appeal, but from recollection I don't remember your parking event being a 'double dip', yet you've included the following in your appeal.

s.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA says: ''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.''

And the paragraph following.

The Operator shows no parking photographs and nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if the vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 2 hours. There is a drive through McDonald’s on the same site, so I put the Operator to strict proof of actual parking for over two hours with no other activity. Even if the car first drove past the cameras and though the car park it is more than possible that the driver may have decided to use the drive-through facility and so 'parking' for over two hours would not have occurred. The Government rules require a full two hours free parking to allow a driver to rest. So I require the Operator to rebut these assertions.

Are you saying that you actually left the site and returned later (double dip) or are you asking the PPC to prove that you did (or didn't) double dip? Not really quite sure what you're trying to achieve with this?

Otherwise you seem to have the main winning appeal heads covered - too much text for me to read through it word by word - 3,500+ of them - so you need to proof read it to ensure it all hangs together and relates completely to your parking event (ie, you haven't copied and pasted someone else's circumstances and not spotted it).

RobinHill

Hi Umkomaas,

Thanks for your attention. Re. the 'double dip', we purposely haven't stated that we did or didn't, just that it is more than possible, not least we don't even know where the cameras are sited.

It is a fact that three vehicles in the group visited the site at the same time, and only two of them received a parking notice (the one that didn't was there the longest).

In addition we were putting the operator to proof of parking for over 2 hours. The signage states 'parking' for 2 hours, not a 'stay' of 2 hours. It is more than possible that we were not parked for 2 hours ie. the drive through etc, and was just adding weight to the fact that the systems are unreliable.

Please advise if you think that we should leave as, re-word, or remove.

In addition we would appreciate your / Coupon-mad's advice on #73.

Thank you.

Umkomaas

But surely you know if it was a double dip or not. If it was then you assert it was and it is for them to prove it wasn't.

If you didn't double dip then what are you asking them to prove - that you didn't, or that you did? What 'answer' do you want from them?

In terms of your name and (email) address, depending on how you want the decision relayed, you will need to give them to POPLA.

You're starting to overthink this, splitting hairs on the gnats back is not going to make a jot of difference to the outcome on this. It isn't a case teetering on the brink.

RobinHill

As I mentioned we don't know where the cameras are / site scope so we wouldn't know for sure esp. given visit to the drive-through etc. However as you eluded it is probably not that important, we will remove the double dip aspects. Cheers.

RobinHill

Any comment on #73, or do we just remove it?

Coupon-mad

RobinHill wrote: »

Cheers Coupon-mad,

We have been finalising the POPLA document. Could you check a last few points for us please. The first below is pretty much copy template stuff but we aren't sure that we have applied it correctly. Our NtK (as posted previously) states "Maximum parking allowance exceeded". We can only think to remove the section below, can you suggest a re-wording?

Point 3 parag. 2 "Also, as hirer/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 7am to 6pm for less than 2 hours. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of PoFA2012."

I would remove that bit, yes.

Sorry if I sound silly but should / do I identify myself to POPLA (ie. name and address), or will this come out in the wash from CEL? Does the document need to be signed / named?

When you complete the POPLA appeal page you have to fill in your name/address and email address (I would put N/A for the phone number as POPLA don't need that). Then tick 3 out of 4 appeal reasons boxes - it is really obvious which one not to tick! And no, you don't sound silly with these questions.

RobinHill

Just submitted to POPLA. We wouldn't have managed this w/o all your help, thank you.

RobinHill

Just out of interest as to whether we should have also included this one too:

British Parking Association CoP regarding Blue Badges. The Code states: "If the landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices."

I trust by providing marked disabled bays then they have provided a concession and where a blue badge has been correctly displayed then a charge notice should not have been issued?