Do I stand a chance?

Redx

you query the validity and usage of the camera due to recent fraudulent activity by UKPC proving that these systems are open to abuse and not fit for purpose

s100000

cheers done those changes.

Should I also drop the UTCCRs - point 4?

s100000

Dear POPLA assessor,

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

My POPLA code is xxxxxxxxxx

1. The lack of Park Direct proprietary interest in the land at the possible site and no contractual authority from the landowner.

The Operator has no standing or authority to form contracts with motorists. Park Direct has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper in connection with parking at this site. All park Direct have stated is that they will provide the registered keeper with a redacted copy if appealing to POPLA and that they hold a ‘confidentiality’ agreement with the landowner, so they cannot provide copy of the landowner agreement.

Park Direct does not appear to have any ownership interest in the car park, so I contend they have no legal standing to enter into a contract with a driver in their own right, nor any legal standing to pursue charges for breach in their own name. As an agent only, Park Direct has no automatic standing or authority which would meet the strict requirements of section 7 of the BPA Code of Practice.

If Park Direct wishes to rely on a contract with the Landowner to claim authority to demand money from me, they should have no problem giving an opportunity for that contract to be examined.

I therefore require Park Direct to provide an un-redacted, contemporaneous, signed and dated copy of the contract between Park Direct and the Landowner, which, to demonstrate standing and authority, must specifically state that park Direct has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows Park Direct to charge £100 for a parking contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.

If Park Direct wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.


2. POFA No keeper liability

As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided, the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a ‘notice to keeper’ compliant with certain provisions.

Firstly, it fails to state the period of parking: paragraph 8(2)(a)

Secondly, The Notice to Keeper does not identify the Creditor. The fact that an Operator's name is on a Notice to Keeper as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties. The Creditor has to be identified with words to the effect 'The Creditor is...'.

The notice to keeper also shows two small scaled photograph that ParkDirect have supplied of the front of the alleged vehicle, but they do not show the number plate of the vehicle on these pictures in the Notice to keeper, with one other vehicle on the side of the photo, but with zero clear indication whatsoever of its actual location. How can they demand any charges, without resounding proof that my vehicle was parked on land that they are contractually responsible for? In the appeal rejection letter, park direct supplied two further pictures, with one showing the rear of the alleged vehicle – but again they do not clearly show the number plate of the vehicle. One of their staff could have taken this photograph of the rear of the alleged vehicle anywhere.

In this case the Driver has not been identified, so the failure of ParkDirect to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.

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, it was not properly issued.


3. Lack of signage - no contract with driver

The are two signs when entering the carpark, one is placed on the floor and one is placed high up on the wall. Both are unlit, so that in darkness no signs are visible and the words are unreadable. I put parkDirect to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is a lack of lighting on site and the The sign at the entrance to the car park is also multi-coloured, non-reflective. A notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties. The sign was not seen by the driver and would have been invisible in the dark. At 23.03pm, the car park is extremely dark. The sign was placed on the ground and high up on the wall- making the sign only visible if the driver was specifically seeking out the sign at pavement level.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''
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...''

[STRIKE]4. Unfair contract terms under the Unfair Terms in Consumer Contracts Regulations 1999.

There is no contract between ParkDirect and the Driver, but even if there was a contract the charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.

Schedule 2 of those Regulations gives an indicative list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) ‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.

Regulation 5(1) states that: ‘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’.

Regulation 5(2) states: ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

I therefore put Park Direct to strict proof that their charge is not in breach of the Unfair Terms in Consumer Contracts Regulations 1999.
[In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5.] –

I contend it is wholly unreasonable to rely on barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act and the Consumer Contract (Information, Cancellation and Additional Payments) Regs 2013. These latter Regs require specific detailed information to be supplied by traders, by durable medium, as well as ensuring the consumer has given 'express consent' to any contract before it is performed - otherwise (unless among the stated exemptions, which a parking contract is not) any trader-consumer contract is now unenforceable and able to be cancelled by the consumer, even after the event. [/STRIKE]

5. Breach of DVLA KADOE contract. No audit trail and no reasonable cause.


Operators are only authorised under their KADOE contract with the DVLA to request keeper’s data if one of the following has arisen:

- where a PCN on a windscreen has already been issued, in the case of a manned car park.
OR
- where the issue of a PCN by post is planned (without a windscreen PCN) - this being allowed only in the case of an ANPR camera car park.

This case was neither. It lacks the required audit trail the DVLA insist upon from all AOS members. DVLA Inspectors enforce the rule: 'all vehicles should be ticketed where ANPR technology is not utilised'. This is a fact in the public domain via FOI:
Driver and Vehicle Licensing Agency - November 2012
‘‘I have since my visit taken further instruction on this procedure. Please would you note that if an operator has the ability to take a photograph of the offending vehicle they should also place a ticket on the vehicle and allow the transgressor time to pay before data is requested from DVLA. I advise that all vehicles should be ticketed where ANPR technology is not utilised.
Summary of Issues: {Operator} to cease making vehicle keeper enquiries to DVLA where ANPR technology has not been used, and vehicles have not been ticketed. (Lack of Audit Trail) ’’

This was not a car park with ANPR cameras. An operative took manual photographs there was no attempt to issue the penalty at the time of the alleged parking . So it is a non-ANPR case for which there MUST be a Notice to Driver served first and 28 days allowed for the driver to appeal or pay. In fact, 28 days was not allowed, a hybrid Notice was posted early, as soon as Park Direct got my data soon afterwards. There was no PCN served so this should never have progressed and it constitutes a DVLA and ICO rules breach - this matter is a common scam played out by Park Direct and it is the subject of several current complaints to the BPA.

This makes a mockery of the DVLA KADOE contract, their ICO registration, the POFA, the BPA CoP and Consumer Protection regulations. I believe this is a case that should also be raised to the attention of the Lead Adjudicator for his next report and for POPLA to forward to the BPA as an example of continuing expressly disallowed procedure.

6. Operation is not reasonable, consistent or transparent

It would appear that the 'parking attendant' used a handheld ordinary camera/phone to take photographs and there was no windscreen PCN issued so the driver had no idea of any contract nor any alleged breach. I don't believe that the person was wearing any kind of uniform or ID showing they are involved with 'parking enforcement' while the parking attendant proceeded to secretly take photos of the vehicle without making themselves known to the driver, as evidenced by the fact the images are all distant. I require evidence that the person was properly trained in the BPA Code of Practice as is required for any self-ticketing, as the lack of grace period and the secret pictures taken leads me to think this was not a trained operative. Nor were they using a liveried vehicle, and I contend that mobile phone pictures from a passer-by are neither reliable nor compliant with the BPA CoP as this is not a reasonable, consistent nor transparent operation. No attempt was made to issue a ticket due to but not limited to the use of non compliant photographs, untrained parking attendants and no uniform or ID and simply the vehicle was never “parked

s100000

??? anyone

Coupon-mad

bump! I have no time!!

s100000

Coupon-mad wrote: »

bump! I have no time!!

thats fine couponmad u have helped enough and i appreciate it

I just wanted to know whether to drop UTCCR or not? And the part in red. I dont want people to rewrite it out or anything. Time is running out and I think I have a good appeal here but we shall see.

Coupon-mad

No the UTCCRs still apply, you just have to show unfairness in a different way than was crushed at the Supreme Court.

s100000

Coupon-mad wrote: »

No the UTCCRs still apply, you just have to show unfairness in a different way than was crushed at the Supreme Court.

any recent appeals to show how i can show it in a different way?

4consumerrights

s100000 wrote: »

any recent appeals to show how i can show it in a different way?

They are applied in different ways.

I have only skim read the thread but it appears that you can state that the use of covert photo taking for the purposes of issuing a parking charge contravenes the unfair terms.

Expand on the Keeper liability section also.

The charge has not been issued either in compliance with sections 7, 8 or 9 of Schedule 4.

It appears that the site is subject to a self ticketer and they are also bound by the Code of Practice.

Look up grace times.

s100000

well the operator has sent their side of it (evidence park) and there is now 7 days to refute their claims.


is there anywhere I can see how to beat what they have said in their defence, although I have answered most of it in the appeal sent to POPLA originally.


Should I post what they have said in their evidence pack here?


thanks.