Underpaid unknowingly

Coupon-mad

You need to remove this (the whole section):

3) No genuine pre-estimate of loss

I will do you a re-hashed version, will work on it and post shortly.

BaBa

Thank you Coupon-mad :hello:

What is the reason for removal of this section?

I'm guessing that it's due to recent appeals not having considered this to be relevant, but the reason behind my including it was to draw specific reference to the fact that the shortfall in payment was just 10p against the £3.30 correct parking charge.

Umkomaas

BaBa wrote: »

Thank you Coupon-mad :hello:

What is the reason for removal of this section?

I'm guessing that it's due to recent appeals not having considered this to be relevant, but the reason behind my including it was to draw specific reference to the fact that the shortfall in payment was just 10p against the £3.30 correct parking charge.

Because the Beavis case side-lined it as a (previous) slam-dunk appeal point. If the new, seemingly poorly trained, POPLA Assessors see 'GPEOL', they're immediately scrabbling for their off-the-shelf block of text where not only do they dismiss the GPEOL point, but jump straight in to dismissing your appeal on the back of (their version/interpretation of) the Beavis case and you'll end up getting templated crud like this:

The appellant says the parking charge does not demonstrate a genuine Pre-estimate of Loss The legality of parking charges has been the subject of a high profile court case, ParkingEye-V-Beavis. The appellant has stated the case of ParkingEye-V-Beavis has no relevance in this instance as the case concerned a customer car park, and not in a resident’s only car park. Despite the differences in circumstances, I am satisfied that the operator has a genuine interest in issuing charges for contraventions of the terms and conditions, and as agreed with the landowner there is still a legitimate requirement to ensure spaces are free for residents of the property.

As, such I am satisfied the case law of ParkingEye-V-Beavis is relevant and can be applied in this case. 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 took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. 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.”

Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court.

Coupon-mad

________________________________________________________


I am the registered keeper and this is my appeal to the above PCN, relating to Marsh Street car park, Hanley.

On the evening of 10th March, one of the vehicle occupants inserted the full £3.30 fee into the machine and upon subsequent and recent review of the ticket, it seems that one 10p coin did not register but the driver was unaware of this.

Other than the £3.30 overnight rate, the only alternate available parking rate is one of £2 for a 2 hour stay, which was clearly not what the vehicle occupant intended to purchase, shown by the fact that the ticket no Bxx (attached as evidence) shows coins actually registered totalling £3.20.

My appeal points are:

1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability.
2) Unclear, and misleading signage - £85 is not in large lettering - no contract.
3) No (BPA section 7) compliant landowner contract evidenced.
4) The machine failed to register 10p - fault lay with the operator and the money was in the machine. Frustration of contract. No contravention as described
5) This case differs from Parking Eye v Beavis which does not apply.




1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

The registered keeper is the appellant and the requirements of Schedule 4 of the POFA are explicit in that there must be strict compliance with the statute, in order to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA CoP supports the need for strict compliance (para 21.5 refers). Highview Parking has failed to comply with the statute and the 'second condition for keeper liability' has not been met. I set out below a non-exhaustive but comprehensive list of reasons why this Notice to Keeper (NTK) fails to comply with Schedule 4:

(i) Contrary to Paragraph 9(2)(a), the NTK did not 'specify the period of parking' to which it related. It merely provided the times when the vehicle allegedly entered/exited the car park; these times when the car was seen in moving traffic do not evidence any single evidenced period of parking.

I put the operator to strict proof that there was a single period of parking because this is a mandatory requirement for keeper liability prescribed within Schedule 4:

(ii) ''9 (3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)...''

(iii) Contrary to Paragraph 9(2)(b), the NTK did not 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';

BOTH the above prescribed requirements must be stated in the NTK and the second prescribed part was not. Paraphrasing is not 'strict compliance' with the statute.

(iv) Contrary to Paragraph 9(2)(c) the NTK does not '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;

The breach was (apparently) lack of sufficient parking payment made for the vehicle to cover the full duration of the visit, however the NTK does not tell me the relevant facts. It does not state what the tariff paid was, nor the remaining sum due, and thus it fails on the requirement to describe the facts and circumstances. It does not mention a shortfall of 10p so it fails to 'describe the parking charges due from the driver'. This cannot be the £85 penalty nor the discount, because the Act stipulates this must relate to parking charges due 'as at the end of that period' (of parking); i.e. the 10p.

(v) Contrary to Paragraph 9(2)(e), the NTK did not 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: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

The NTK fails to include all of the above wording, as prescribed under the statute. It is therefore, a non-POFA NTK, only capable of driver liability which cannot apply here in the absence of a driver appellant.

(vi) Contrary to Paragraph 9(2)(f), this NTK fails in the prescribed requirement to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;''

This vital warning about liability is completely missing because it is designed only as a non-POFA NTK, only capable of driver liability but that only comes into play in law, where the driver has been identified. No assumptions can be drawn by POPLA or the operator because registered keepers are not the only drivers of vehicles.

(vii) Contrary to the requirements of Paragraph 9(2)(h), the NTK does not identify the creditor and specify how and to whom payment or notification to the creditor may be made;

(viii) Contrary to the requirements of Paragraph 9(2)(i) the NTK does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

A 'date of issue' is the day the document was prepared in the office and is neither the date SENT nor GIVEN. In Schedule 4 the 'date sent' is defined as the date actually posted by 1st class mail and 'date given' has a prescribed meaning, defined in law and is not a date stated on this NTK.

Highview Parking has forfeited any right to recover any unpaid parking charges from the keeper of the vehicle. POPLA must apply the applicable law. There is no other method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable.

I cite the words of Mr Henry Greenslade, the 2015 POPLA Lead Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a 'non-POFA' (like this one) NTK was served. The Lead Adjudicator reminded operators (and his team of Assessors) of the following facts about a keeper's right not to name the driver and, of course, still not be held liable:

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 'NIP' 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.”

The POFA states: ''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (b) has given a notice to keeper in accordance with paragraph 9.''

The operator has failed to meet the second condition for keeper liability. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper. This basic fact was further confirmed by Mr Greenslade, POPLA Lead Adjudicator, in page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Highview cannot lawfully claim this charge from me at all.



2) Unclear, and misleading signage - £85 is not in large lettering - no contract

Signage in many areas of the car park is sparse and those displaying the terms are primarily grouped around one side of the car park affixed to a wall and in sych small font as to be unreadable - even more so on a dark and wet evening - from any distance unless directly in front of them. This fails the BPA CoP and fails to create a contract.

I submit photographic evidence of one such sign with inadequate font size. Having reviewed the layout and positioning of the signage and ascertained from the occupants of the car, the location at which the vehicle was parked on that evening to the exit of the car park, no signs displaying the £85 in large lettering were capable of being read.

The P&D machine merely informs a driver of the tariffs, not the £85 charge risk nor 'contract'. Signs with terms are also absent from the route of exit adjacent to and facing Marsh Street.

As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that a driver is clearly informed of terms and the parking charge itself:

''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which— (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.''

The burden falls to the party trying to claim money, to produce irrefutable evidence that their signs provided for 'adequate notice' (in darkness/bad weather) of the £85 charge.

As well as a 'site map' showing the location of all signs - and the plotted/circled location of where they contend the car was actually parked in one single period - they must show photos of the signs as the driver would see them from a car, upon entering the site. It is not enough just to have some signs up if the charge itself is illegible due to the height, small font and/or wordy small print where that vital information is buried. The driver knew they had to pay £3.30 and they did pay £3.30 - however they had no idea that they risked paying a further £85 on top.

A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. In the Beavis case, the Supreme Court Judges concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound. Yet here, the driver took every reasonable step to pay and did pay in full, and also displayed the ticket and input the correct VRN, yet knew nothing about any £85 charge, so there was no contract nor obligation to pay it.



3) No (BPA section 7) compliant landowner contract evidenced.

The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right. Section 7 of the BPA CoP requires written authority from the landowner to operate on the land and to enforce charges in the courts. I suggest that this operator is not empowered by the landowner to sue over a mere 10p alleged shortfall, which must have slipped through their machine and therefore, was received in takings anyway.

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 put Highview to strict proof by producing a contract evidencing all of the prescribed sections of 7.3 and setting out whether or not they have the right to enforce charges in the courts if necessary or whether that remains in the gift of the landowner.


4) The machine failed to register 10p - fault lay with the operator and the money was in the machine. Frustration of contract. No contravention as described.

There was no shortfall in payment made because the driver paid £3.30 and by virtue of a machine fault, the printed ticket only acknowledged £3.20. The remaining 10p did go through the slot so the right payment was 'made' and therefore received by this operator.

The NTK says the breach was (apparently) 'insufficient parking payment made for the vehicle to cover the full duration of the visit.' I submit that this contravention, as described, did not occur because the full payment WAS made to cover the full duration. A machine fault does not mean that the right coins were not put in and does not evidence that insufficient payment was 'made'.

I put Highview to strict proof that their machine was in full working order and it is reasonable that I ask for their records. For example, they must be able to show all underpayments alleged that day and a report showing how much 'over' the machine was in terms of money received, compared to the tickets printed. I suggest that this machine has a fault of swallowing/nor properly registering 10p coins and that this issue was caused by that fault.

Further, I submit that a fault in a machine cannot lead to one party claiming a significant sum in compensation from the other. A contract may be 'frustrated' where there exists a turn of events which is not the fault of either party, which renders the contract impossible to perform. The doctrine of 'frustration' acts as a device to set aside contracts and the effect is to discharge liability automatically, so that neither party is liable to the other for any breach caused by an unexpected event beyond both parties' control. The ticket printed the wrong amount received as the 10p coin slipped through the machine unregistered, which was not the fault of the driver. This occurred after the act of parking and every step was taken to pay the right amount, so any contract was frustrated by the machine fault.



5) This case can be distinguished from Parking Eye v Beavis. There is no commercial justification and the signs are inadequate by comparison.

Highview parking are quoting Parking Eye v Beavis in the NTK but it has no application in this case, which turns merely upon an easily calculable (alleged but denied) 10p shortfall in a monetary transaction. This is a 'standard' financial contract, of the type described in the Beavis case as being subject to the usual penalty rule (i.e. the opposite of the charge in the complex case being examined in Beavis).

The rationale and construction behind this standard monetary contract fails to disengage the penalty rule.

In the Beavis case, ParkingEye enforced a free licence under a time limit and there was no tariff - no monetary transaction at all. That and the commercial aims of the landowner for a regular turnover of spaces meant it was considered far more complex than a pay & display system, where the tariff is quantifiable. ParkingEye merely showed that the 'complex' contractual arrangement in that specific car park was not an unenforceable penalty, only in that case, despite the Judges saying that the penalty rule was plainly 'engaged' in private parking charge cases.

The Supreme Court decision does not transfer seamlessly to car parks where the transaction is an easily-quantified financial one (a tariff) and where no similar commercial 'legitimate interest' exists. Parking charges in less complex cases can, indisputably, still be found to be unenforceable penalties, as was discussed at length in the Beavis case:

EXTRACTS FROM LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees):

14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;''

32. ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

So, the Supreme Court considered that Lord Dunedin's four tests to identify a penalty were still a "useful tool" in deciding whether a simple damages clause in a standard contract was 'unconscionable' or 'extravagant'. The penalty rule is clearly engaged in this case of a standard contract with a monetary tariff.

The 'Tweet' from the Supreme Court made it clear that application to all parking charge cases was not the intention of the judgment, which turned on those signs in that particular car park, together with a unique complex contract creating a (rare) legitimate interest beyond restitutionary damages. However, this material case is one which Courts have seen many times before, a simple 'standard' contract of a 'financial/economic nature' and the only interest that Highview Parking has in enforcing their £85 charge is their profit alone. That is not enough because there is no interest beyond that aim, no commercial justification to save the charge from being condemned by the 'penalty rule'.

This position is reinforced by Court of Appeal judgment, where it was held:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

The ParkingEye v Beavis judgment makes clear that the Higher Courts would have considered the disproportionate charge in this case a clear penalty. They found the contract in Beavis 'entirely different' from simple, 'monetary transaction' cases such as they had seen before. In the case of a standard financial transaction like this one, the loss is easily calculable. This is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 85.

The reference in the Beavis case, to the need for clear, unambiguous terms and the parking charge and restrictions being copiously displayed and in 'large lettering' assists my position. The signage was found to be very 'prominent' in ParkingEye's case at the Supreme Court, unlike the signage here which could not be read in the dark.

The Beavis decision is not a 'silver bullet' and it cannot be twisted to strike out the majority of private parking ticket appeals, and certainly not those which are regarding a Pay and Display site where the alleged loss (tariff) is a tangible sum. BOTH parties are obliged to show how any case law they wish to rely upon, applies to and assists their own case. So the burden now shifts to Highview to respond and it is not for POPLA to interpret case law and apply a standard Beavis/GPEOL paragraph, regardless. It is never the remit of an independent ADR like POPLA to 'make the Beavis case' for an operator whose argument is weak as regards applying that case law to their case.

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 applying the Beavis case and other case law:

''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 new POPLA Service must not make any wrong assumptions about liability nor impose the Beavis case arbitrarily upon all cases. The Beavis case is NOT synonymous with 'GPEOL' any more than it is applicable to all parking charge cases. That judgment certainly does not supersede all other points and each case must still turn on its own facts and I am not even arguing about 'GPEOL' as such. I am arguing it is an unenforceable penalty.

The burden now shifts to this operator to submit their argument to try to counter mine where I state that, due to the facts of THIS charge in THIS car park with these signs and this flawed rationale for the sum and lack of legitimate interest and authority, the Beavis case does not assist them at all. The operator has escalated 10p to £85 which is grossly disproportionate and an unconscionable 'damages clause', nothing like the gratuitous licence offered to Mr Beavis, supported by a complex contractual arrangement.

The Supreme Court held: 'interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity'. Applying those tests, THIS charge is out of all reasonable proportion to the 10p (which was in the machine anyway) and is unenforceable.

I confidently submit that it would be impossible to apply ParkingEye v Beavis to this standard economic contract. As Highview Parking have shown no other compelling reason or rationale for escalating 10p to £85, they fall foul of the penalty rule...just as ParkingEye would have, if they had taken a 'standard contract' to Supreme Court level.

I have made my detailed submission to show how the applicable law and the BPA Code of Practice undoubtedly supports my appeal, which I submit must now be determined in my favour. As keeper, I cannot be held liable in law.

HO87

I think Vine is still relevant to Point 7 and should be cited. Whilst the facts are somewhat different (presumably the OP hadn't been taken ill) the issue of prominence and visibility of the signs most certainly is. The helpful comment of Lord Justice Roch [at para. 19] is:

Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning.

Coupon-mad

Yep, it could be added back in. I only struggled with it because the OP did read terms enough to pay and display so there wasn't an argument that NO signs were seen. Just an argument that terms to pay £85 were not seen.

BaBa

Coupon-mad, sincere thanks for the outstandingly well scripted appeal proposal. I'm honestly humbled that you would go to such lengths to help a fellow person, and am extremely grateful.

I'd propose that I will need to modify or remove one or two points though including 1) v. and 1) vii. The first of those items I believe has been covered by highview as shown in the extract of the NTK in my image posted above and the second which I believe to be covered on the reverse of the page posted above (I can scan and post both sides later if required).

I'll also propose to reword the section regarding signs. The lettering warning of £85 is relatively large and the photo that I have would confirm this (so may be best not submitted as evidence?) My argument would purely be based around the fact that these are not at the entrance and that none were directly passed either by the vehicle or its occupants on entering or leaving the car park.

I'll add the vine case reference as discussed also, and will post up again tonight together with the fuller NTK detail that I didn't provide previously.

I feel that my strongest arguments are 4, 1.vi and 1.iv in descending order so I'm keen not to draw focus away from these with inclusion of too many lesser or potentially invalid arguments.

Coupon-mad

Yep, all sounds good and vi is the most important of the NTK omissions (the one that proves it is non-POFA version). Good to know you are adjusting the signage bit to suit the evidence of the case, rather than just accepting what I have written verbatim.

BaBa

Hi All

Subsequent to my submitting my appeal to POPLA, and many thanks again for the guidance in preparing that - especially to Coupon-mad, I've received from POPLA the Highview response, interesting extracts from which are below:

The response opening summary:

In response to the PCN, BaBa appealed stating that payment for parking was made. He included a copy of the ticket which showed the expiry time as 20:30 on the day in question. BaBa also disputed the signage on site. BaBa also disputed our authority to act on behalf of the landowner.

Rejecting his appeal, we advised that the signage is displayed in compliance with all relevant laws and regulations. By parking his vehicle on the site BaBa entered into a valid contract and agreed to abide by its terms and conditions. The ample signage displayed throughout the site advises the terms and conditions of use. One of the conditions is that this is a pay to park site. The signage advises that a Parking Charge Notice of £85 will be issued when allowing your vehicle to remain on site without paying for parking to cover the full duration of your stay. It is the driver’s responsibility to ensure they comply with the terms and conditions of the site. In this case, by allowing his vehicle to remain on site for 1 hour 45 minutes in excess of the period paid for, BaBa breached those terms and conditions.

We have included in Section G a copy of the transaction report from the machines on site on the day in which we have highlighted the payment for 2 hours of parking. There are no other payments for this vehicle. We highlight that the evidence provided by BaBa confirms this payment and he has not provided any evidence of payment to cover the full duration of his stay. Please note that we have blanked out part of the VRMs for data protection purposes.

We can confirm that we have the authority to act on behalf of the landowner, please see signed witness statement provided in Section G which confirm this. The onus is on the appellant to provide evidence to support his claim that we do not – if the appellant genuinely believes that we do not have such authority, they should have gone to the BPA to obtain this information.

This Notice was issued 6 days after the contravention occurred. Our position remains that we have received no mitigating circumstances or evidence for which we should cancel the PCN. We maintain BaBa entered into a valid contract and should pay the valid parking charges as per the signage on the site.

The parking charges signage:


The site owner witness statement:


Extract from the report showing payments made to parking ticket machines:


They have also included as appendix D a blank sheet in all respects other than containing my name and address and are describing this firstly as registered keeper details and liability trail and then as registered keeper and driver details and liability trail.

In respect of the above evidence, and in response to the invitation from POPLA for me to reply to this evidence I'm thinking along the lines of:

1. The liability aspect is one of my challenges in the appeal to POPLA in respect of the notice to keeper being non-compliant. The keeper details and liability trail submitted by Highview are not evidence of keeper liability as far as I can see in any respect and the reference to registered keeper and driver details is misleading as they do not have the driver details. In summary, I don't feel that they have addressed my challenge of not establishing keeper liability and have not responded to the non-compliant PCN. There are other aspects of the PCN that I challenged as being non-compliant that have not been addressed but the above one is most relevant.

2. Another significant argument, and the reality of what happened in this case, is the claimed 10p underpayment. My argument and insistence that the machine swallowed the coin without registering or that the last coin became lodged unknowingly is, I feel, absolutely vindicated by the evidence in the Highview report.

The transaction number 80381 for our vehicle, highlighted in yellow, indicates payment of £3.20 to machine serial number 103. The charges sign shown above clarifies the payment rates and so one could not intentionally have paid £3.20 in view of the rates being either £2.50 or £3.30. Furthermore, and this is crucial I feel, the very next transaction number 80382 within less than 2 minutes at the same machine number 103 is with an overpayment of 10p! This is compelling evidence that the 10p that we had applied somehow didn't register before the ticket was issued but then was there (maybe dislodged, maybe an electronic fault) when the next person inserted their £3.30 into the slot - making that payment then £3.40.

3. Pedantic point, but the witness statement refers to the PCN being issued on 10th March which is not the case ('date of notice' is 16th March). This deems the statement to be incorrect or false in my opinion.

4. Numerous photos of signage are included, close ups showing the £85 penalty. My argument is that from where the vehicle is parked to the exit of the car park, none of these are passed and so close ups showing lettering sizes in broad daylight are not relevant to my point. They also include night time photographs showing signs attached to lampposts with an explanation that in hours of darkness, these lampposts light the signs. This is not the case as the lamppost lamps are street light and not signage height and so very little light actually falls upon the sign which is closer to a just above head height level. This point is validated by the fact that their own pictures in hours of darkness actually show that the signs are unreadable! They also refer to the entrance notice, and whilst this is directly in line with the entrance, the sign itself is actually posted at the very far side of the car park opposite the entrance - supported by their site sign layout plan which confirms this point. Another pedantic point, probably distracting or even detracting from my strong arguments, is that their summary states 'The signage advises that a Parking Charge Notice of £85 will be issued when allowing your vehicle to remain on site without paying for parking to cover the full duration of your stay' whereas it actually refers only to the terms being that a ticket is purchased.

In view of all of the above points, I believe more than ever that the reality of what happened is clear and that my appeal points of liability not established due to deficient PCN, the 10p discrepancy due to machine malfunction etc. are evidence that the charge ought to be cancelled.

I'd very much appreciate thoughts and comments, and advice on whether I should respond to the evidence or rely upon the appeal that I've submitted which already covers the same points.

Thank you in advance.

Unicorn51

Also there is a Data Protection issue. From the ticket machine log, they are still retaining VRN of vehicles that used the car park at the same time as you.

Any personal data should be deleted as soon as it is no longer needed.