Re-submission following WH letter

Gadfium

I appreciate that there is a rush of these to the board, but would appreciate any feedback before i submit this to WH.

Particulars of the case:
A claimed overstay at a motorway service station, with a NTK issued by PE. The car is a company car and the NTK was issued to my employer. I appealed to ParkingEye, got a POPLA code and appealed to "old" POPLA. The case has been in limbo since then/

I have removed any reference to GPEOL in this submission to WH:

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Re: ParkingEye PCN, reference code XXXXXXXXXXXXXX
POPLA Code:XXXXXXXXXXXXXXXXXXXXX


I am the registered keeper of the vehicle related to the parking charge notice (reference above).
I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.

1) [FONT=&quot]No evidence to show that a “first in, last out” has not happened[/FONT]
2) [FONT=&quot]No evidence to show that the APNR system is reliable.[/FONT]
3) Failure of the Private Parking Company to adhere to the BPA Code of Practice
4) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
5) The signage was non-compliant with the BPA CoP
6) The ANPR system is unreliable and neither synchronised nor accurate
7) Unlawful Penalty Charge
8) Your reference to ParkingEye vs Beavis.
9) [FONT=&quot]Submission of further evidence from the Operator.[/FONT]

1)[FONT=&quot] No evidence to show that a “first in, last out” has not happened.[/FONT]
[FONT=&quot]ParkingEye has provided to the adjudicator photographs to support their claim of an overstay. As registered keeper I have put it to ParkingEye in my appeal to clearly show evidence that the vehicle was parked for over two hours. They have not provided this.
I also put it to ParkingEye that the vehicle in question is a company car that makes frequent, daily trips up and down the M6. I put it to ParkingEye to evidence that they have not photographed the vehicle entering on one visit and leaving on a second or subsequent visit. They have not provided this.
I put it to ParkingEye that there is a petrol station at the scene, and to provide evidence that the vehicle in question may have been photographed on a second or subsequent visit to the site to use this facility. It has been shown in Altrincham County Court (Case 3JD08399) that driving around a carpark does not mean that a car is parked, and as such, an attempt levy a parking charge would not be correct. I put it to ParkingEye to provide evidence that the vehicle in question was parked for the periods claimed. [FONT=&quot]They have not provided this.
I put it to Parkin[FONT=&quot]g[/FONT]Eye to show that the vehicle was parked in the car park for the duration of the alleged incident and not part parked in the parking space and part parked at the petrol station. They have not done this.

ParkingEye has provided NO evidence to support their claim other than two photographs showing an entry and exit.I would like to bring to the adjudicator’s attention that this is a motorway services site, frequented by high-sided HGVs. It is entirely possible that during one or more of the vehicles visits to this site on the day that the APNR system used by ParkingEye simply did not record that the vehicle had left the site as the vehicle was blocked from the camera’s view by a high-sided HGV. This is entirely possible given the locations at the exit of the ANPR cameras. As the vehicle in question travels the M6 on a daily basis I put it that it is highly likely that a multiple visit has been recorded as a single stay. I outlined the possibility of this in my appeal, yet ParkingEye has chosen not to provide to the adjudicator strict evidence that the vehicle was parked for the periods claimed. I request that you uphold my appeal.[/FONT]They cannot show that the vehicle was parked for the duration or that a “first in, last out” has not happened. Without evidence that the vehicle was parked for the duration there can be no case.[/FONT]

2) [FONT=&quot]No evidence to show that the APNR system is reliable.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to 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 the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
ParkingEye has not provided any evidence to show that their system is reliable, accurate or maintained. [FONT=&quot]I request that you uphold my appeal based on this.[/FONT][/FONT]

3) Failure of the Private Parking Company to adhere to the BPA Code of Practice
In direct contravention of Clause 22.8 of the British Parking Association’s Code of Practice, to which ParkingEye must abide, states that members of the BOA must “acknowledge or reply to the challenge within 14 days of receiving it". The initial appeal was lodged on ParkingEye’s online system on 03/03/2015. ParkingEye did not respond until the 19th March, where they rejected the initial appeal.
In their rejection of the initial appeal, ParkingEye did not include a POPLA code or include any information on how to appeal. This is in contravention of Clause 22.12 which outlines that in the event of a rejection then the PPC must "tell the motorist how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website for lodging an appeal and a valid 10-digit verification code. Even if the verification code is automatically printed on an enclosed appeal form, it must still be in a prominent position on the first page of the rejection letter”. It is only through the intervention of Mr Steven Clark of the British Parking Association (following a number of emails that were sent to him) that ParkingEye issued a POPLA code’
In addition, the POPLA code issued by ParkingEye was issued on 26/03/2015, yet the code was issued on the 25/03/2015. As such, ParkingEye have issued a code one day before the date of the appeal rejection letter. This means that they are attempting to deny the full 28 days to appeal.

ParkingEye is in clear breach of the code that they are to operate under. As such I reject their claims. In addition I believe that ParkingEye are trading unlawfully by deliberately trying to prevent the Registered Keeper from accessing the independent POPLA appeal process. As such I will be lodging an official complaint with the local Trading Standards office.

4) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
ParkingEye has not produced any evidence to show that they have any legal right to issue charges on behalf of the landowner. They have provided a witness statement but not any of the requested detail to show detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). There is also no proof that the alleged signatory on behalf of the landowner has ever seen the relevant contract or, indeed, is even an employee of the landowner. It is my contention that this witness statement should be disregarded as unreliable, not proving full BPA compliance and is not sufficient to prove that Parking Eye have the necessary legal standing at this location to bring a claim in their own name nor to form any contractual relationship between the landowner and motorists. I detailed this in Section 4 of my appeal letter, yet ParkingEye has chosen to ignore this.
I also refer to the fact that the “old” POPLA service ALWAYS found in favour of the appellant where the PPC had not proved that they had the authority of the landowner, in accordance with Section 7 of the BPA Code of Practice. Please note that this practice included disregarding any evidence not shown to an appellant, so the operator cannot add it now for Wright Hassel to consider. The Operator has not shown a full unredacted copy of the contract that allows them to act (as detailed above).

For clarity, the BPA Code clearly states that
“T[FONT=&quot]he 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”
[FONT=&quot]
ParkingEye has not provided the adjudicator any evidence to show that they have authority to issue charges in line with the BPA Code. The Operators evidence [/FONT]fails to show any of the BPA requirements then the omissions must be interpreted in the way which favours the consumer. I[FONT=&quot] request that you uphold my appeal on this point.

[/FONT][FONT=&quot]In addition, I refer to POPLA case reference 1771073004 where the assessor ruled that a witness statement was not valid. This witness statement, based on the template provided by the POPLA Lead Adjudicator, concerned evidence which could have been produced but was not. This is exactly analogous to the current case if the operator produces a witness statement regarding contract documents between he operator and the landowner; the alleged contract is a document which the operator could produce (if it exists) but chooses not to. I request therefore that the “new” POPLA is consistent with the “old” POPLA scheme in its processes and also rules any witness statement produced by the operator invalid.[/FONT]


[/FONT]

5) The signage was non-compliant with the BPA CoP
The signage is, I believe, non-compliant. The signs are badly placed, full of overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand.

Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. 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.

I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

6) The ANPR system is unreliable and neither synchronised nor accurate
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's ApprovedOperator Scheme Code of Practice. I require the Operator to 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 the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

In addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of the vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. I contend that this ANPR "evidence" from this Operator in this car park is unreliable I put this Operator to strict proof to the contrary.

I also claim that the signs at the car park do not clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner. Unless the Operator can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

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

[/FONT][FONT=&quot]The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue: [/FONT][FONT=&quot]http://www.britishparking.co.uk/How-does-ANPR-work[/FONT][FONT=&quot]. The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. ParkingEye show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return. [/FONT][FONT=&quot]
[/FONT][FONT=&quot]
In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''[/FONT][FONT=&quot]
[/FONT][FONT=&quot]ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'. [/FONT][/FONT]



7) Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow(review, February 2011), ParkingEye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

The carpark in question is free for the first two hours and £11 for the next two hours. The £100 charge is punitive and not any representation of any loss incurred.


8) Your reference to ParkingEye vs Beavis
[FONT=&quot]I refer to your letter dated 07/04/2016 (your reference “POPLA”).
The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I content it is not the assessor’s job to make the case on behalf of the operator.
The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th they tweeted that the judgment was taking in account use of this particular car park & clear wording of the notices.

[/FONT]
9) [FONT=&quot]Submission of further evidence from the Operator.[/FONT]
[FONT=&quot]Again I refer to your letter dated 07/04/2016 (your reference “POPLA”), specifically where you state that any further evidence that I supply will be submitted to the Operator “..so that they may provide their comments. We will then make a decision on the Appeal”. I quote from the Lead Adjudicator Henry Greenslade’s Final Report (page 3):
“At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon”[/FONT]
and again from the 2015 Annual Report:
“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''
I expect that Wright Hassall will honour the same service that I signed up for under the “old” POPLA scheme. I expect that I will receive from the Operator their response to this additional information. Can you please confirm that this is the case.

In addition, the lead Adjudicator also stated (again from page 3 of the Final Report) that “I might add that each case is carefully considered, not by an anonymous decision maker but rather by a named Assessor. I really do not see how anything less could be considered fair and open. Assessors at POPLA have no contact with parties or with the BPA, who are in fact located in a different part of the country. Quite simply, we are as completely removed and independent of the BPA …””
I put it to you to evidence that Wright Hassall are going to comply with the findings of the Lead Adjudicator and submit the name of their adjudicator and to show that Wright Hassell are independent of both the BPA and the Operator.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Gadfium

It's a bit of a long one, but I am trying to hit them with multiple points.

pappa_golf

Gadfium have you read the pranksters blog this evening?


http://parking-prankster.blogspot.co.uk/2016/04/wright-hassall-begin-to-hear-stayed.html

Gadfium

Hi pappa golf- yes, I had a read of that. I've taken the opinion (rightly or wrongly I do not yet now) of removing any GPEOL reference that formed part of my original POPLA appeal. I did use the paragraph where he states that Beavis was not a "silver bullet"

Coupon-mad

It is a bit long.

I would weed out #3 entirely because that point categorically won't win a POPLA appeal. Concentrate on what might.

Amalgamate and cut down, points #2 and #6. 'ANPR unreliability' is a bit vague and the Fox-Jones case has never helped anyone else because we were never given the Claim Number for it, so it means nowt. More important to cite would be something like this:

http://parking-prankster.blogspot.co.uk/2015/10/parkingeye-subject-to-data-protection.html

And I would change the word 'parked' when talking about petrol station activity, so amend this:

I put it to ParkingEye to show that the vehicle was parked in the car park for the duration of the alleged incident and not part parked in the parking space and part parked at the petrol station. They have not done this.

to this or similar (my changes in red):

I put it to ParkingEye to show that the vehicle was parked in the car park for the entire duration of the alleged incident and not part parked in the parking space and in fact involved in exempt activity as well. Speciifically, as this is a Motorway Service Area (MSA) it is highly likely that the driver obtained petrol and also likely that they filled up with air and/or water and would have also had to queue for all these activities and also pay for any petrol. None of which is 'parking time' and which all takes place in an unsigned/unmarked part of the site boundary, not subject to a 2 hour parking restriction.

You can argue that the ANPR cameras are in fact in the wrong place because they include parts of the site whch are unrestricted - the petrol station area being very clearly just such a hot spot. So, as there is no evidence adduced at all by PE as to where the car was in relation to a sign during the whole time, their case for 'parking overstay' fails.

You could also say that if PE try to argue that in fact the 2 hours is a 'max stay' not a 'max parking' restriction, in fact the Government mandatory policy for MSAs prove this to be an untruth:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/237412/dft-circular-strategic-road.pdf

Free parking for up to 2 hours minimum for all vehicles permitted to use the road served by the facility.'' = MANDATORY(page 17)

So, the official Government requirement in stated policy is 2 hours free PARKING, not 'total stay' and it cannot include an area that does not even form part of the car park restricted boundary.

Also on page 18 this is stated (again, MANDATORY POLICY):

PARKING CHARGES
B19. At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.

ParkingEye have shown no evidence of the amenity building(s) signage (if any) so it cannot be assumed that any signs are inside at all. There are certainly none within the Petrol Station which is an 'Amenity Building' and area in its own right and time spent on basic but necessary vehicle maintenance there, cannot fall within the Government's mandatory 2 hour parking in the car park itself, which is a provision allowing drivers to rest. Their evidence pack includes an aerial view which proves your point that there are no signs at the petrol station amenity so it is an unrestricted area wrongly included within the site covered by ANPR.

Oh, and where you talk about the 'witness statement' in the evidence pack and the failure to show a - e of section 7.3 of the CoP, mention that this 'witness statement' does not show any boundary setting out the restricted area as opposed to the Petrol Station Amenity. It is also signed by a lady ('Jamie Lee Knapp'...something like that, from memory?) whose position is unexplained and is unknown to the MSA so it is contended this signatory may merely be an employee of ParkingEye with a conflict of interests.

The_Deep

Are you claiming that this was a case of "double dipping"? If so I am struggling to see how Beavis v PE is/was relevant.

Coupon-mad

He's saying there's no evidence to discount it and as it is a Services it is possible (or very likely that the car was also in the petrol station amenity area which is unrestricted).

WH will not struggle to see how Beavis applies (their letter gives that away, an assumption already made) so that will not be worth a major argument. It is worth saying but it won't swing the case in the OP's favour.

Better to talk about no signage in the Amenity Area Buildings or Petrol Station and to attack the lack of landowner authority in a vague witness statement signed in flowery writing by a 12 year old no-one at the Welcome Break has heard of.

To the OP, this also needs to be removed, it says nothing useful at all:

7) Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow(review, February 2011), ParkingEye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

Except the final sentence from that bit (shown below but with more suggested wording) which should be part of the short argument distinguishing the case from Beavis as it is a 'standard contract' with an easily quantifiable £11 tariff which cannot escalate to £100.

The carpark in question is free for the first two hours and £11 for the next two hours. The £100 charge is punitive and not any representation of any loss incurred. It fails Lord Dunedin's four tests for a penalty which the Supreme Court Judges in the Beavis case confirmed remains the relevant and appropriate test in standard financial contracts - like this one - where 'restitutionary damages' are quantifiable (in this case at £11 - this is indisputable and there are no Beavis 'complex contract' similarities. The Court of Appeal stage JUdges found the Beavis scenario to be 'entirely different' from this exact kind of 'economic transaction' pre-defined charge contract.).

Gadfium

Thanks for the really good advice. I'm re-writing the case this evening and will respond more fully then.

Again, I'm really grateful for the advice offered.:beer:

Gadfium

Well, the response was lodged in time to meet their ridiculous timescale. Since then, nothing, not even an acknowledgement. You would think that, given the rush they were in to get the responses back, that the process would be quick? What a bunch of jokers.

Herzlos

The quick demand from them has nothing to do with them wanting to make a decision quickly. It's purely to try and catch people out responding late (like the first round of letters that went out over the Easter holiday week).

At least you're showing yourself to be reasonable once they reject your appeal and try to threaten you with court.

Gadfium

Holy thread resurrection, Batman.

Got the results back from the "new, improved" POPLA:
Reasons for allowing the Appeal
• The Appellant stated that the Car Park Operator did not respond to their initial Appeal within the 14
day requirement of 22.8 of the BPA Code of Practice which states “You must acknowledge or reply to
the challenge within 14 days of receiving it.” Evidence shows that the Car Park Operator did not
respond until 16 days after the appeal was received. We have no option but to allow this Appeal

:beer::j:j

Many thanks to all that helped, especially Coupon-Mad (why is she PPR???)