Show your cards?

ticketfighter

OK here's my "letter" which will be a pdf attached as other. Any thoughts?

I am the registered keeper and I wish to appeal a recent parking charge from Total Parking Solutions on 8/5/16 at Exe Bridges Retail Park. 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, TPS 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 TPS to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between TPS and the landowner, not another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to TPS

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
The Parking charge notice I received has many omissions.
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: “If after 28 days beginning with the day after that on which the Parking Charge Notice was SERVED....”

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) 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 the unidentified landowner, 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.

(i) 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.

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 readable so there was no valid contract formed.
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.

The entrance sign at Exe Bridges retail park is at least 2 metres above the ground and 2 – 3 metres off to the side of the entrance. This makes it far from obvious, especially during a sunny day when sun visors could be down. In fact it is probably IMPOSSIBLE to see during such circumstances.

The signs “group 1 text” height also doesn't meet the requirements in appendix B. As you can see from the attached photos, the text height is only 45mm high. This doesn't even meet the requirements of the lowest category (barrier control). 60mm (or even 90mm) is what is actually OBJECTIVELY required and their signs DO NOT meet this requirements.

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 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.!

4) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.
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.!

I have made several detailed points including OBJECTIVE, IRREFUTABLE FACTS about why TPS haven't followed the guidelines in the NTK and signage. Therefore the only possible decision is that my appeal be upheld.

Yours faithfully

Registered keepers name

Coupon-mad

Your quote of what the NTK says about the 28 days is different from the thread I linked. You said:

(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: “If after 28 days beginning with the day after that on which the Parking Charge Notice was SERVED....”

yet the other thread said:

(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.

If yours says 'served' then they have actually improved their NTK which is annoying, because served is 'given'. Does your NTK definitely say '28 days beginning with the date served'?

Apart from that I am thinking the POPLA appeal is fine - unless there is scope to add 'Grace Periods' from the BPA, if the overstay was only 11 or 12 minutes or so?

ticketfighter

Yeah it does says it exactly how I said. Shall I remove it or keep it and be picky that's it's not verbatim?

The overstay was 35 minutes (oops) so bit more than 11 or 12 minutes I think.

I also noticed that the sections of POFA 9 -2 were lettered differently in the letters in the links, so they must have changed it. Something to watch out for.

ticketfighter

Although somewhere else it says: ..... payable no later than 28 days from the date of issue of this notice.

Coupon-mad

ticketfighter wrote: »

Although somewhere else it says: ..... payable no later than 28 days from the date of issue of this notice.

Aha, quote that bit instead, like the other poster did.

ticketfighter

OK changed and submitted. :eek: fingers crossed.

ticketfighter

So this is new. I received a copy of TPS "evidence pack". Basically them stamping their feet, throwing teddys out the pram etc and saying you were there you were there, with a zoomed in photo of the number plate. Also got an email from POPLA saying they received it too and I had 7 days to comment on it.

Is this normal? I didn't know this was a part of the process. Shall I bother saying anything? They didn't actually address any of my main points bout non compliance with basically everything. Shall I just say, look they haven't addressed any of the points I raised?

Umkomaas

This is normal procedure.

You can open your response with the fact that they have not addressed any of your points. But then you go about dismantling anything they have said in their evidence pack that is either plain wrong or is something you disagree with. Remember no admission as to who the driver was.

If POPLA follow the court's procedure then anything you don't refute can be interpreted that you agree with it. Don't sleepwalk into that!

Coupon-mad

As Umkomaas says, yes list your comments but don't re-write an appeal nor add anything new, POPLA won't allow that. Make it concise and clearly focussed on the evidence pack issues you have spotted.

ticketfighter

Hi guys good news! We won!

Thanks for all the tips, advice and help. Hopefully it can help someone else too.

Cheers