ANPR images -is there a a standard requirement for these?

Coupon-mad

darktiara wrote: »

Thanks for all the replies. It will come as no surprise my appeal was rejected and I am now working on my popla appeal

Show it here FIRST because plenty of people have reported losing v PE at POPLA recently.

darktiara

Hi All,


Please could I have comments on my draft POPLa appeal?
Many thanks in advance.


Re: ParkingEye Parking Charge Notice

POPLA Verification Ref: XXXXXXXXX

I am the registered keeper of Vehicle XXXX XXX and I wish to appeal a recent parking charge from ParkingEye whilst at Town Quays Short Stay CarPark, Southampton.
I submit the points below to show that I am not liable for the parking charge:

In Summary: A)The Notice to keeper is incorrect
The validity of the images provided by Parking Eye as evidence is disputed
C) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
D) The ANPR system is unreliable nor accurate.
E) Lack of grace period
F) ParkingEye do not own the land mentioned in their Notice to Keeper
G) The charge is disproportionate and not commercially justifiable

Specifically:-
The notice to keeper is incorrect for three reasons
The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012. The alleged incident occurred on the 14th January and the Notice to Keeper was received on the 30th January 2016.

• Southampton Town Quay car park has no keeper liability - due to byelaws prevailing. Town Quay car park is not "Relevant Land” ParkingEye are aware of this issue following POPLA decision code 6060344057 and POPLA Reference 6060755093.
  
  The following is from POPLA Reference 6060755093 “I think it is important to add that I also accept the Appellant’s submission that the land is not ‘relevant land’ for the purposes of the Protection of Freedoms Act 2012 (“POFA”) because this was their main submission. I find that the land is subject to statutory control for the reasons given by the Appellant and therefore, by virtue of paragraph 3(1)(c) of Schedule 4 of POFA, the Operator has no right to recover under POFA.
  Accordingly, I allow the appeal.
  Ricky Powell Assessor “
  
  I intend to complain to the DVLA about ParkingEye continuing to send a standard Notice to Keeper letter which mentions the POFA 2012 when the company know it is not applicable at this site. Therefore ParkingEye have no right to write to me as the day-to-day keeper of this car. As such the driver will not be divulged and ParkingEye must cancel this charge.
  
  As this was a Pay and display carpark, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed.
  
  On the Notice To Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay.
  
  This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. The Operator has the technology to record car registrations, to collect and record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.
  
  These are the 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...'
  NTK is not compliant, for example re this requirement:
  The NTK specifically fails on all counts.
  
  The registered keeper is submitting this appeal and Parking Eye do not have the identity of the driver, who is not the registered keeper.
  
  As Parking Eye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.
  
  i) The unpaid parking charge that should have been requested (paragraph 9(1) of the Act) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that Parking Eye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.
  
  ii) – Parking Eye have failed to notify the registered keeper why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. The Act states that the reason for the charge is made clear and again Parking Eye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.
  
  The registered keeper disputes the validity of the images provided
  
  The images provided do not clearly show the vehicle in question nor do they show it parked and as such the claim for parking charges cannot be upheld. Refer to BPA statement
  
  “Timed photographs are taken of the vehicle itself entering and leaving the car park, and also close ups of the vehicle’s number plate.”
  
  The first photo is black showing no features of the vehicle in question nor any identifiable features to ascertain where the picture was taken. The second photo appears to have been taken whilst the car is stopped at the traffic lights waiting to exit the site and as such should not be recorded as the end of the disputed parking period.
  
  C) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
  
  I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).
  
  Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car.
  
  The Registered Keeper believes that the signs were not seen/are ambiguous and the terms unclear to drivers before they park. The car park in question has no clear signage to explain what the relevant parking restrictions are.
  
  This means no contract can be formed with the landowner and all tickets are issued illegally.
  
  There is no clear boundaries or markers as to where the road ends and the car park begins nor is there clear information as to when the time for payment starts.
  
  I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).
  
  The signage was not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there was no contract.
  
  D) ANPR Accuracy and breach of the BPA Code of Practice 21.3
  This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.
  
  In addition I question the entire reliability of the system.
  
  I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronized with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.
  
  ParkingEye's evidence shows no parking time, merely a photo of a number plate and then a photo of a car coming out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.
  
  ParkingEye have failed to provide a timed photograph of the vehicle entering the car park (see b).
  
  British Parking Association state the following on ANPR on their website
  
  b) Timed photographs are taken of the vehicle itself entering and leaving the car park, and also close ups of the vehicle’s number plate.
  
  As keeper I cannot discount that the driver may have driven in, realized it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits) As the alleged offence occurred at a peak period when a vehicle ferry was due in and the passenger ferry was leaving, combined with peak travel conditions it is not unreasonable that volume of traffic entering and leaving the site may have increased the time required to enter and exit. There are no signs regarding any restrictions on return visits.
  
  The BPA even mention this as an inherent problem with ANPR on their website;
  
  “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.
  
  Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner ..”
  
  E) Lack of grace period
  The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers “…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract.” (28.3)
  
  “13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
  
  13.2 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.
  
  And that when using Automatic Number Plate Recognition (ANPR), “…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge.” (30.2)”
  
  I require ParkingEye to provide details as to what the grace period is for each of the above points for this site.
  
  
  F) ParkingEye do not own the land mentioned in their Notice to Keeper
  
  ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.
  
  Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. ParkingEye have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. I require Parking Eye to provide a contemporaneous and unredacted copy of their contract with the landholder that demonstrates they have the authority to both issue parking charges and litigate in their name.
  
  G) The charge is disproportionate and not commercially justifiable
  
  The amount you have charged is not based upon any commercially justifiable loss to ParkingEye or the landowner.
  
  I request that based on the above defense, my appeal is upheld and for POPLA to instruct ParkingEye to cancel the ‘PCN’.

mmmatt

Hi there,

I just won my appeal against PE at Southampton Town Quay.

My appeal findings can be found in the POPLA thread.

The short of it is, most of that is good but pointless throwing everything at them - the only thing I won on was the ABP land not being relevant land. I used that same appeal letter but re-arranged it slightly to put that at the top (you don't want to assessor to get bored and miss the main point!).

P.E. didn't even come up with a defense!

Edna_Basher

As per mmmatt's advice, I suggest that you make the "not relevant land" argument an appeal point in its own right.

Here's a suggestion.


1) Southampton Town Quay is not relevant land for the purposes of POFA

Paragraph 3(1) of Schedule 4 of POFA states that in this Schedule “relevant land” means any land (including land above or below ground level) other than:

a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
b) a parking place which is provided or controlled by a traffic authority;
c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Parking at Southampton Town Quay is subject to the statutory control of Associated British Ports Southampton Harbour Byelaws 2003 (“the ABP Byelaws”); this location is therefore not relevant land for the purposes of POFA.

I draw your attention to Part IV of the ABP Byelaws (Goods and Road and Rail Traffic), in particular the terms of Paragraphs 37 and 39 which specifically refer to the parking of road vehicles, thereby confirming that parking on the Port of Southampton’s land is subject to statutory control. I also draw your attention to the map on Page 20 of the ABP Byelaws which confirms that Southampton Town Quay lies within the boundaries of the Port of Southampton for the purpose of the ABP Byelaws.

POPLA has already determined that Southampton Town Quay is not relevant land; I refer to the outcome of POPLA appeal reference 6060755093 which is now supported by a very recent adjudication by Eileen Ioannou, POPLA assessor.

POPLA must reasonably determine that ParkingEye has no lawful right to hold the vehicle’s keeper liable for the charge; the scope of any claim for unpaid parking charges is limited to the vehicle’s driver.

POPLA already has possession of a copy of the ABP Byelaws; I refer you to POPLA Ref. 6060196190. However, should you require a further copy, please let me know.


With regard to Eileen Ioannou's decision, mmmatt may be able to give you the POPLA reference number.

With regard to the last paragraph in my suggested appeal point, POPLA Ref.6060196190 is our most recent Town Quay appeal, submitted to POPLA in January. Alternatively, you could provide POPLA with a copy of the ABP Byelaws yourself – they can be downloaded from:

http://www.southamptonvts.co.uk/admin/content/files/PDF_Downloads/Soton%20Byelaws.pdf

darktiara

Thanks for your response mmmatt, would you be willing to provide your POPLA code so I may quote it?

darktiara

Hi, Here is my revised POPLA appeal following feedback. I would be grateful for any comments.


In Summary:
1) Southampton Town Quay is not relevant land for the purposes of POFA
2) The Notice to keeper is incorrect
3) The validity of the images provided by Parking Eye as evidence is disputed
4) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
5) Lack of grace period
6) ParkingEye do not own the land mentioned in their Notice to Keeper
7) The charge is disproportionate and not commercially justifiable


Specifically:-

Southampton Town Quay is not relevant land for the purposes of POFA
Paragraph 3(1) of Schedule 4 of POFA states that in this Schedule “relevant land” means any land (including land above or below ground level) other than:

a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
b) a parking place which is provided or controlled by a traffic authority;
c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Parking at Southampton Town Quay is subject to the statutory control of Associated British Ports Southampton Harbour Byelaws 2003 (“the ABP Byelaws”); this location is therefore not relevant land for the purposes of POFA.I draw your attention to Part IV of the ABP Byelaws (Goods and Road and Rail Traffic), in particular the terms of Paragraphs 37 and 39 which specifically refer to the parking of road vehicles, therebyconfirming that parking on the Port of Southampton’s land is subject to statutory control. I also draw your attention to the map on Page 20 of the ABP Byelaws which confirms that Southampton Town Quay lies within the boundaries of the Port of Southampton for the purpose of the ABP Byelaws.
POPLA has already determined that Southampton Town Quay is not relevant land; I refer to the outcome of POPLA appeal reference 6060344057 and POPLA Reference 6060755093, which is now supported by a very recent adjudication by Eileen Ioannou, POPLA assessor.
The following is from POPLA Reference 6060755093 “I think it is important to add that I also accept the Appellant’s submission that the land is not ‘relevant land’ for the purposes of the Protection of Freedoms Act 2012 (“POFA”) because this was their main submission. I find that the land is subject to statutory control for the reasons given by the Appellant and therefore, by virtue of paragraph 3(1)(c) of Schedule 4 of POFA, the Operator has no right to recover under POFA.
Accordingly, I allow the appeal.
Ricky Powell Assessor “

• POPLA must reasonably determine that ParkingEye has no lawful right to hold the vehicle’s keeper liable for the charge; the scope of any claim for unpaid parking charges is limited to the vehicle’s driver. POPLA already has possession of a copy of the ABP Byelaws; I refer you to POPLA Ref. 6060196190. However, should you require a further copy, please let me know.

The notice to keeper is incorrect

• The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012. The alleged incident occurred on the 14th January and the Notice to Keeper was received on the 30th January 2016.
• Parking Eye have failed to notify the registered keeper why the parking charge is due as is required by the Act. Their generic template PCN states that the charge arises from either not purchasing the parking time or remaining at the car park longer than permitted.
  
  ParkingEye are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.
  
  These are the 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...'
  NTK is not compliant with this requirement
  The NTK specifically fails on all counts.

• The registered keeper disputes the validity of the images provided

The images provided do not clearly show the vehicle in question nor do they show it parked and as such the claim for parking charges cannot be upheld. Refer to BPA statement

“Timed photographs are taken of the vehicle itself entering and leaving the car park, and also close ups of the vehicle’s number plate.”

The first photo is black showing no features of the vehicle in question nor any identifiable features to ascertain where the picture was taken. ParkingEye have failed to provide a timed photograph of the vehicle entering the car park. The second photo appears to have been taken whilst the car is stopped at the traffic lights waiting to exit the site and as such should not be recorded as the end of the disputed parking period.

I thereby contest question the ANPR Accuracy. This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronized with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.

I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system.


It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that the driver may have driven in, realized it was pay and display then driven out possibly to get change or to find alternative parking before returning (and of course the ANPR cameras show only the first and last visits)

The BPA even mention this as an inherent problem with ANPR on their website;

“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.

Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner ..”

As the alleged offence occurred at a peak period when a vehicle ferry was due in and the passenger ferry was leaving, combined with peak travel conditions it is not unreasonable that volume of traffic entering and leaving the site may have increased the time required to enter and exit. There are no signs regarding any restrictions on return visits.

The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).

Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car.
The Registered Keeper believes that the signs were not seen/are ambiguous and the terms unclear to drivers before they park. The car park in question has no clear signage to explain what the relevant parking restrictions are.
There is no clear boundaries or markers as to where the road ends and the car park begins nor is there clear information as to when the time for payment starts. This means no contract can be formed with the landowner and all tickets are issued illegally

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).

The signage was not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there was no contract.

Lack of grace period


The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers “…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract.” (28.3)

I require ParkingEye to provide details as to what the grace period is for each of the above points for this site.

ParkingEye do not own the land mentioned in their Notice to Keeper

• ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require Parking Eye to provide a contemporaneous and unredacted copy of their contract with the landholder that demonstrates they have the authority to both issue parking charges and litigate in their name.

The charge is disproportionate and not commercially justifiable

• The amount you have charged is not based upon any commercially justifiable loss to ParkingEye or the landowner.

Coupon-mad

Bumping this is case anyone else wishes to add comments on Monday. I'd suggest you need a bit more in the final point at least mentioning the Beavis case and how this differs.

darktiara

Hi all,

First of all thanks for all your comments and help. I have been advised by POPLA

"Thank you for submitting your parking charge Appeal to POPLA.
Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge."

Shame I had to go through the whole process though!

Umkomaas

I think they shy away from having POPLA uphold your appeal on the 'Not Relevant Land' issue.

Coupon-mad

Interesting - they did not want POPLA to look into Town Quay and relevant land.

SNAP, UMKOMAAS!