TPS PCN at Jempsons Store, Rye

bucklag

Thanks everyone again for your quick responses. This is what I have found i think is omitted from the PCN:

These are the omissions:

''9(2)The notice must—
(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...'


(2)
(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— It does not state they do not know the driver just my dtails were requested as registered keeper from the DVLA
(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 PCN states payable no later than date of issue of this notice.
(h)
(i)
specify the date on which the notice is sent (where it is sent by post) or given (in any other case). Not sure on this one all the PCN had is issue date of notice
(5)
The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. Again here is states if the charge is not paid within 14 days of the notice issue date, the full charge is due.



Also should I make Grace periods one of my main points and add the argument there or put it under one of my current headings?

cheers

Gary

Half_way

What happened when you asked the store to cancel?

bucklag

I asked via email as I live a long way from Rye, I got a response saying after careful consideration that they would not rescind the PCN on this occasion.

bucklag

Heres my 2nd draft think I have added everything extra that has been suggested. I need to have my appeal in by the 15th of this month so do you think what I have here is sufficient?


Re: Total Parking Solutions PCN, reference code
POPLA Code:
I am the registered keeper and I wish to appeal a recent parking charge from Total Parking Solutions on 19 February 2016 at 18:00, at Jempsons Store, Rye TN31 7AF. I submit the points below to show that I am not liable for the parking charge:

1) No standing or authority to pursue charges nor form contracts with drivers.
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) The signage was not readable so there was no valid contract formed.
4) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.

1) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Total Parking Solutions must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Total Parking Solutions to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Total Parking Solutions and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Total Parking Solutions.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, 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!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' 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. This Operator has the technology to record car registrations, to collect/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—
(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...'
(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— It does not state they do not know the driver just my details were requested as registered keeper from the DVLA
(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 (H)
(I)
Specify the date on which the notice is sent (where it is sent by post) or given (in any other case). Not sure on this one all the PCN had is issue date of notice
(5)
The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended

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


3) The signage was not compliant so there was no valid contract formed between Total Parking Solutions and the driver
The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. This Car Park is Unlit and due to the time of arrival compounded the issue of poor signage. Total Parking Solutions place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by Total Parking Solutions to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Total Parking Solutions signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Total Parking Solutions to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo shopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

4) The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit

The rules of the BPA require you to allow a grace period of at least 11 minutes either to allow a motorist to read the signs and make payment or decide whether parking is permitted, and at the end of a period of paid for time or maximum stay to allow for discrepancies in the time shown on different devices. A reasonable grace period should be granted and should be fair so no one is discriminated against i.e. those with small children or disabled people - see below clause 13 of the BPA COP:-

Breach of the BPA Code of Practice regarding Grace Periods: The BPA Code of Practice requires that additional time upon entry and further time upon exit, is to be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for Total Parking Solutions to ignore their industry code, which states re grace periods:

Prior to parking: -
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.

Upon returning to the vehicle: -
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

Total Parking Solutions evidence shows no parking time; merely photos of a car driving in and a car outside of the car park which does not discount the possibility of a double visit that evening or even the 2nd image being of the car driving past the car park. 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 synchronised to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised 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). The BPA even mention this as an inherent problem with ANPR on their website;

The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) 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.
b) 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...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. Total Parking Solutions have failed to clearly inform drivers about the cameras and how the data 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 terms of ANPR logs and maintenance. Indeed, I question the entire reliability of the system. I require that Total Parking Solutions present records as to 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 two images purporting to show my vehicle entering and exiting at specific times.

This concludes my POPLA appeal.

Yours faithfully,


xxxxxxxxxx {registered keeper's name...}

Coupon-mad

Coupon-mad wrote: »

Add the BPA CoP 7.3 quoted...

As mentioned already, add the above to your point about no landowner authority because it has nitty gritty detail in that section and then they could fall at that hurdle.

Your point 3 about signage is too generic, a template. Make it more specific, so include at the start of it, the fact that:

The car park was unlit (pitch black) and the only sign readable on entrance I'm informed said parking Tariffs apply 9am-4pm.' Therefore, from this entrance sign a drive must conclude that no tariff or charge can apply outside of those hours (unless prominent and lit signs in the car park clearly inform him otherwise). The driver states that there were none readable at all because it was pitch black, so they were completely uninformed about any maximum stay and/or about any charge which could possibly apply outside of published tariff charging hours.

DO NOT say he finally went in the store at the end, don't even mention it! Signs instore come too late to form a parking contract anyway.

Quote the Beavis case about signs having to be in large lettering and prominent and very clear as to the terms by which a driver will later be bound. You will find lots of other POPLA appeals already quoting the Judges on the signage requirements - use the Supreme Court's words (POPLA like that decision). Quote Lord Denning's Red Hand Rule from Mendelson v Normand (search this forum or Google/Wikipedia it). Quote it!

And quote the BPA CoP about signage font size (Appendix and entrance signage and the bit that talks about 'if you enforce in hours of darkness'...signs must be lit or reflective and legible. Quote that chunk.

And see posts 16 and 17 here (ignore stuff about Hospitals):

https://forums.moneysavingexpert.com/discussion/comment/70494743#Comment_70494743

You can see how landowner authority quotes 7.3 from that example and in post #17 I've suggested something to add at the end (remove the bit about the Government NHS Car park policy!). But you can use pretty much all of the post #17 suggested wording to make POPLA see you are not liable, from 'I would remind POPLA that' right through to the bit asking them to find in your favour.

bucklag

Thanks Coupon Mad I think I have added everything you suggested now except 'if you enforce in hours of darkness'...signs must be lit or reflective and legible. The seems to no longer be in the BPA CoP.

Heres my latest draft:

I am the registered keeper and I wish to appeal a recent parking charge from Total Parking Solutions on 19 February 2016 at 18:00, at Jempsons Store, Rye TN31 7AF. I submit the points below to show that I am not liable for the parking charge:

1) No standing or authority to pursue charges nor form contracts with drivers.
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) The signage was not readable so there was no valid contract formed.
4) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.
5) Unreasonable and unfair terms – no contract agreed to pay £40. Fails the ‘Aziz test’.


1) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Total Parking Solutions must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA Code of Practice.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.

In addition, Section 7.3 states:

“The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement.''

I therefore put Total Parking Solutions to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Total Parking Solutions and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Total Parking Solutions.


2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, 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!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' 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. This Operator has the technology to record car registrations, to collect/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—

(a)
Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; (The 'period of parking' is not shown, just two photographs with nothing to identify where the car was within the car park, in moving traffic. No visible signs or landmarks are in the background to show where the pictures were taken so this cannot be evidence sufficient to establish any period of parking.

(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...'

(f) Warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (Total Parking Solutions have worded this incorrectly stating that this is payable no later than 28 days from the date of issue of this notice.

The amount of the unpaid parking charges specified under paragraph (d) has not been paid in full. (The NTK fails to state the sum of the unpaid parking charge that the driver was alleged not to have paid on the day (which can only be the tariff and not the £40 which is not payable by any mechanism and cannot be deemed the 'unpaid' sum). To comply with paragraph 9, a NTK 'must' describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the postal Notice. It does not mention those unpaid charges (the tariff).

(h) Specify the date on which the notice is sent (where it is sent by post) or given (in any other case). (Total Parking Solutions have not informed me of the date the notice was sent but just the issue date of this notice)

(G) identify the creditor and specify how and to whom payment or notification to the creditor may be made; ( This NTK does not identify the creditor, which may be Total Parking Solutions, may be Jempsons Store, or could certainly be another party altogether. The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the Notice to Keeper is compliant. And (as was found by POPLA on many occasions in 2015) nor can the 'creditor' be assumed just because the NTK asks for payment to be made to Total Parking Solutions. The NTK should have a statement to the effect that 'the creditor is'...and it does not.)


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


3) The signage was not compliant so there was no valid contract formed between Total Parking Solutions and the driver

The car park was unlit (pitch black) and the only sign readable on entrance I'm informed said parking Tariffs apply 9am-4pm.' Therefore, from this entrance sign a driver must conclude that no tariff or charge can apply outside of those hours (unless prominent and lit signs in the car park clearly inform him otherwise). The driver states that there were none readable at all because it was pitch black, so they were completely uninformed about any maximum stay and/or about any charge which could possibly apply outside of published tariff charging hours.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.


Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

If a driver can't read the sum of the parking charge (the £40) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

The well-known and oft used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:

‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’

i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £40 charge for a 24 minute overstay in a car park) needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on a par with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.


The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied by Total Parking Solutions to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Total Parking Solutions signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Total Parking Solutions to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo shopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

4) The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit

The rules of the BPA require you to allow a grace period of at least 11 minutes either to allow a motorist to read the signs and make payment or decide whether parking is permitted, and at the end of a period of paid for time or maximum stay to allow for discrepancies in the time shown on different devices. A reasonable grace period should be granted and should be fair so no one is discriminated against i.e. those with small children or disabled people - see below clause 13 of the BPA COP:-

Breach of the BPA Code of Practice regarding Grace Periods: The BPA Code of Practice requires that additional time upon entry and further time upon exit, is to be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for Total Parking Solutions to ignore their industry code, which states re grace periods:

Prior to parking: -
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.

Upon returning to the vehicle: -
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

Total Parking Solutions evidence shows no parking time; merely photos of a car driving in and a car outside of the car park which does not discount the possibility of a double visit that evening or even the 2nd image being of the car driving past the car park. 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 synchronised to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised 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). The BPA even mention this as an inherent problem with ANPR on their website;

The BPA's view is: 'As with all new technology, there are issues associated with its use:

a) 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.
b) 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...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. Total Parking Solutions have failed to clearly inform drivers about the cameras and how the data 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 terms of ANPR logs and maintenance. Indeed, I question the entire reliability of the system. I require that Total Parking Solutions present records as to 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 two images purporting to show my vehicle entering and exiting at specific times.


5. Unreasonable and unfair terms – no contract agreed to pay £40. Fails the ‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £40 had there been negotiations in advance, the answer here is obviously no. One could have parked free on road at this time of night (from 6pm-8:24pm). There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £40 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.


I have made my detailed submission to show how the applicable law (POFA), case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.

This concludes my POPLA appeal.

Yours faithfully,


xxxxxxxxxx {registered keeper's name...}

Coupon-mad

5. [STRIKE]Unreasonable and unfair terms –[/STRIKE] No contract agreed and no legitimate interest nor clear signs - Beavis case not relevant. [STRIKE]Fails the ‘Aziz test’.[/STRIKE]

As regards the location of the car park, the interests of the operator - and the unlit signs in poor light at night - there is no comparison with the Beavis decision.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.” And as for whether average consumers 'would have agreed' to pay £40 had there been negotiations in advance, the answer here is obviously no. One could have parked free on road at this time of night (from 6pm-8:24pm).

There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £40 to this parking firm. Their charge relies upon unseen terms, not clear contracts and there is no comparable commercial justification - this is not an unusually attractive location where drivers would not be able to park on street - and this site does not reflect the 'complex' circumstances in the Beavis case and this charge should not be upheld.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''

Yours sincerely
R Reeve
POPLA Administrative Team

The point here is, the new POPLA Service cannot and must not make any wrong assumptions about keeper liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' (which I am not arguing, in fact) automatically supersedes all other points of appeal about other parking charges in other car parks.

It certainly does not 'supersede' all other points, is not a silver bullet and each case must still turn on its own facts.

Much more was said in the ParkingEye v Beavis judgment than findings about 'GPEOL' as opposed to 'commercial justification' and it did not shoot down any other parking charges, by default. In actual fact, this binding case law supports a consumer appellant in other parking charge cases, not least regarding the requirement to display very clear prominent terms that can be read in the light conditions before parking.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs, the Beavis case does not assist them at all.

Finally, if TPS should try to suggest that there is any method outside of the prescribed statute (POFA) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators of the following facts about a keeper's right not to name the driver and, of course, still not be held in law as liable under Schedule 4:

https://www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.

Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

I have made my detailed submission to show how the applicable law (POFA), case law (Lord Denning's binding words, as well as the Beavis case) and the BPA Code of Practice undoubtedly supports my appeal, which I submit should now be determined in my favour.

bucklag

Great news appeal was successful, TPS did not even send me the evidence pack to enable me to do a re-buttal put POPLA have upheld my appeal as it was.

DecisionSuccessful
Assessor NameLauren Bailey
Assessor summary of operator case
The operator’s case is that the appellant exceeded the maximum parking time at the site.

Assessor summary of your case
The appellant’s case is that the operator has no authority to pursue the parking charge. He says that the Notice to Keeper is not compliant with the Protection of Freedoms Act (PoFA) 2012 and that the signage is not sufficient. The appellant says that the Automatic Number Plate Recognition (ANPR) is not reliable or accurate and that the operator has no legitimate interest with reference to the Beavis case.

Assessor supporting rational for decision
While the appellant has raised a separate ground of appeal, my report will focus solely on the signs reference to the parking charge amount. The appellant has stated that the operator has no legitimate interest in the land and referred to the Beavis case. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, it is evident that I must consider whether the signage at the location was sufficient to bring the parking charge to the attention of the appellant and other motorists who may wish to park. Within Section 18.1 of the BPA Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states, “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” Within its response, the operator has provided a number of photographs documenting the signage at the location and a site map also which documents the signs placed around the car park in question. However, the signs provided do not clearly state the amount that will be charged to motorists that do not comply with the terms and conditions of parking at the location. Based on the evidence provided, I cannot conclude that the signage in place at the location is “conspicuous” or “legible” as required under the BPA Code of Practice. It therefore does not meet the standards outlined by the Supreme Court in that the “wording of the notices” is not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park.




Thank you again everyone who helped me with my appeal really appreciated! :beer:

Gary

Coupon-mad

Nice one, maybe we should re-use that long point about signage, plus final point about the Beavis case and Henry Greenslade etc., which also mentioned signage and pretty much taunted POPLA to dare to disagree:


3) The signage was not compliant so there was no valid contract formed between Total Parking Solutions and the driver

The car park was unlit (pitch black) and the only sign readable on entrance I'm informed said parking Tariffs apply 9am-4pm.' Therefore, from this entrance sign a driver must conclude that no tariff or charge can apply outside of those hours (unless prominent and lit signs in the car park clearly inform him otherwise). The driver states that there were none readable at all because it was pitch black, so they were completely uninformed about any maximum stay and/or about any charge which could possibly apply outside of published tariff charging hours.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

If a driver can't read the sum of the parking charge (the £40) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

The well-known and oft used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:

‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’

i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £40 charge for a 24 minute overstay in a car park) needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on a par with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.

The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied by Total Parking Solutions to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Total Parking Solutions signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Total Parking Solutions to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo shopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.


AND

No contract agreed and no legitimate interest nor clear signs - Beavis case not relevant.

As regards the location of the car park, the interests of the operator - and the unlit signs in poor light at night - there is no comparison with the Beavis decision.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.” And as for whether average consumers 'would have agreed' to pay £40 had there been negotiations in advance, the answer here is obviously no. One could have parked free on road at this time of night (from 6pm-8:24pm).

There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £40 to this parking firm. Their charge relies upon unseen terms, not clear contracts and there is no comparable commercial justification - this is not an unusually attractive location where drivers would not be able to park on street - and this site does not reflect the 'complex' circumstances in the Beavis case and this charge should not be upheld.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''

Yours sincerely
R Reeve
POPLA Administrative Team

The point here is, the new POPLA Service cannot and must not make any wrong assumptions about keeper liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' (which I am not arguing, in fact) automatically supersedes all other points of appeal about other parking charges in other car parks.

It certainly does not 'supersede' all other points, is not a silver bullet and each case must still turn on its own facts.

Much more was said in the ParkingEye v Beavis judgment than findings about 'GPEOL' as opposed to 'commercial justification' and it did not shoot down any other parking charges, by default. In actual fact, this binding case law supports a consumer appellant in other parking charge cases, not least regarding the requirement to display very clear prominent terms that can be read in the light conditions before parking.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs, the Beavis case does not assist them at all.

Finally, if TPS should try to suggest that there is any method outside of the prescribed statute (POFA) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators of the following facts about a keeper's right not to name the driver and, of course, still not be held in law as liable under Schedule 4:

https://www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.

Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

I have made my detailed submission to show how the applicable law (POFA), case law (Lord Denning's binding words, as well as the Beavis case) and the BPA Code of Practice undoubtedly supports my appeal, which I submit should now be determined in my favour.