NTK received - ANPR system, Absolute Parking Management LTD

Fluff15

Hi everybody

Would just like to double check I've got everything in place before I send off my initial appeal to the parking company. I received the following through the post yesterday:

Image redacted under advice.

Absolute Parking Management LTD is regulated by the BPA, checked on their website.

NTK dated 30th August, alleged parking contravention on 30th June. No windscreen ticket issued, ANPR only.

Dear Sir or Madam,

Ticket number: xxxx
Vehicle registration number: xxxxxxx

You issued me with a notice to keeper on 30th August 2016 but I believe it was unlawfully issued. I decline your invitation to name the driver, which is not required of me as the keeper of the vehicle.

Your notice to keeper is incorrect. The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012, whereby it must have been received within the period of 14 days beginning with the day after that on which the specified period of parking ended. Your notice to keeper is dated 30th August 2016, received by post on the 7th September 2016, therefore not within the 14 day time limit.

The amount you have charged is not based upon any commercially justifiable loss to your company or the landowner. In my case, the £100 charge you are asking for far exceeds the cost to the landowner, which is a free of charge car parking area. I therefore feel the charge you have asked for is excessive.

If you choose to pursue me please be aware that I will not enter into any correspondence. Should you reject my appeal, I expect to receive a POPLA code and any further correspondence I shall regard as harassment.

Yours faithfully

Fluff 15

The_Slithy_Tove

That's not the recommended BPA member appeal as per the NEWBIES thread. Talking about losses is old hat (ever since last November). Best to use the tried and tested approach.

Fruitcake

You should redact the times from the PCN. Whilst you haven't identified the driver, PPCs monitor this site and any slipup about driver details can be traced back to you as keeper.

As above, you should use the tried and tested BPA appeal template in blue that you will find in the Sticky thread for NEWBIES.

Fluff15

Thank you - I followed the template provided on the MSE website so it seems their format is out of date! So omitting the costs part, my initial appeal would be simply:

Dear Sirs

I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

Your notice to keeper is incorrect. The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012, whereby it must have been received within the period of 14 days beginning with the day after that on which the specified period of parking ended. Your notice to keeper is dated 30th August 2016, received by post on the 7th September 2016, therefore not within the 14 day time limit.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Fruitcake

It's not that the "official" MSE template is out of date, it's that it is crap. Many complaints have been made to MSE towers about it, but all have been ignored.

This thread contains the best and most up to date information you can get.
Your modified appeal looks OK to me.

Fluff15

Wonderful, thanks. Such a helpful lot

Fluff15

Hi everybody me again

So apm rejected my appeal (they have said it was issued correctly, which obviously it wasn't!) and issued me a POPLA code.

My internet or search function is playing up, so I can't find a very recent appeal for anpr outside of issue time. Could anybody point me in the right direction so I can fill out the popla appeal website correctly?

Many thanks

Coupon-mad

Read the sticky thread 'POPLA Decisions' from the end and use the template wording (where relevant) to start putting a POPLA appeal together. The templates were posted only the other week, some by me, also Edna Basher and IanMSpencer contributed. All September dated posts.

Top of the forum. Easy to find & read, from the last posts backwards, not far to look back either!

Or just search this board (NOT GOOGLE, so you don't need an internet search engine) for 'POPLA no keeper liability' or similar keywords.

Fluff15

Fingers crossed, just submitted my appeal to POPLA, full details below:

1) I have had no evidence that Absolute Parking Management have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012, whereby it must have been received within the period of 14 days beginning with the day after that on which the specified period of parking ended. The notice to keeper is dated 30th August 2016, received by post on the 7th September 2016, therefore not within the 14-day time limit.

2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

3) I believe that the signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The unremarkable and obscure signs were not seen by the driver, and the terms are not readable to drivers before they park. I have below attached a photograph of the only obvious signage displayed upon entry to the carpark, on appendix A. I have also attached a photograph of a vast area of the car park without signage shown on appendix B, and appendix C shows no notification or signage of parking terms upon entrance to the restaurant that the carpark serves.

The sign located at the entrance (appendix A) fails to properly warn/inform the driver of the terms and any consequences for breach. Absolute Parking Management have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. The contract cannot be formed after the vehicle has already been parked. In breach of Mandatory Entrance Signs BPA code of practices, Absolute Parking Management have no signage with full terms, which could ever be readable at eye level, for a driver in moving traffic on arrival.

I put Absolute Parking Management to strictly prove otherwise; as well as a site map they must show photos of the signs as the driver would seem them on entering the car park so prominently that the party ‘must’ have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

4) Further, I understand Absolute Parking Management do not own the car park and have given me no information about their policy with the landowner or on site businesses, to cancel such a charge. I expect them to supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Absolute Parking Management to strict proof of the contract terms with the actual landowner (not a lessee or agent). Parking Eye have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and send PCNs, merely acting as agents. No evidence has been supplied lawfully showing that Absolute Parking Management are entitled to pursue these charges in their own right.

5) The ANPR system is unreliable and neither synchronized nor accurate. Absolute Parking Management’s ANPR records show no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. 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 number plate registration system via screens within the restaurant, which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of ‘parking time’ at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event that evening.

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/used. I say that Absolute Parking Management have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. If there was such a sign at all then it was not prominent, since the driver did not see it. 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 and I put this Operator to strict proof of full ANPR compliance.

In addition, I question the entire reliability of the system. I require that Absolute Parking Management present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronized with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. 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. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronization of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require Absolute Parking Management to show evidence to rebut the following assertion. I suggest that in the case of my 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 synchronization system”, there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so “live” is not really “live”. Hence without a synchronized time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore, I contend that this ANPR “evidence” from the cameras in this car park is just as unreliable and unsynchronized as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put Absolute Parking Management to strict proof to the contrary and to show how these camera timings are synchronized with the number plate registration console.

Coupon-mad

Be ready for when this firm might show POPLA their evidence, you are entitled to see it and comment on it but you only get six days (not even seven, as POPLA suggest). Tell us if this bunch contest with evidence, so we can help with your short rebuttal (not re-appealing, but picking out things in the evidence which are found wanting, like useless signage pics, illegible terms, no contract from the landowner shown, etc.).

Fluff15

I have had a response from APM, please see below a copy of their text and screenshots of evidence:

Breach of Terms and Conditions

Absolute Parking Management LTD can confirm that the above site is on private land, is not council
owned and that we have written authority to operate and issue Parking Charge Notices at this site
from the landowner (or landowner’s agent). Please see the excerpt from our signed contract with the
Site (Section A.31).

Absolute Parking Management LTD PCN is non-POFA.

The Appellant’s vehicle was parked at the Site without entering their vehicle’s correct registration
details and/or parked in the said location for a duration of more than 4 hours as per the Terms and
Conditions of parking. The vehicle was observed on the site from xx-07-2016 xx:xx:xx until xx-07-2016
xx:xx:xx , a total of 8hr 48min 0sec in a controlled Absolute Parking Management LTD car park. If the
appellant has claimed that the touch screens were not functioning and/or they did enter their
registration, a screenshot from our system of all other vehicles that successfully entered their vehicle’s
registration number at the time the appellant was parked on the site can be found in section A.4.

The “P” entrance signs state: “ 4 Hours Free Parking For Customers Only.” and “ Please enter
correct vehicle registration details on the touch screens provided in the bar .” and “Charges
Apply See the Notices in the Car Park.”
The Terms and Conditions signage clearly states: “ 4 hours free parking for customers only. No
return within 2 hours. Please enter correct registration details on the touch screens provided
in the pub ”. The Signage on the site also clearly states: “ Failure to comply with these terms &
conditions below will result in a £100 parking charge notice (PCN) ”. The terms & conditions
read as follows:
“Failure to comply with these terms & conditions below will result in a £100 parking charge notice (PCN)”. The
terms & conditions read as follows: “Absolute Parking Management Ltd (Company No. 09654120) is authorized by
the landowner to operate this private car park for and on its behalf. We are not responsible for the car park
surface, damage or loss to or from motor vehicles or general site safety. Parking is at the absolute discretion of the
landowner and the terms and conditions that apply are set out within this notice (the “Parking Contract”). By
parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and
conditions (the “Parking Contract”) and are authorised to park only if you follow these correctly, including payment where directed, entering your registration details via the payment and/or permit systems. If you fail to
comply, you accept liability to pay the fee for unauthorised parking (the “Parking Charge”). This Parking Contract
shall form the entire agreement between the parties. By entering this private car park, you consent, for the
purpose of car park management to: the capturing of photographs of the vehicle and registration by the ANPR
cameras and or by the attendant and to the processing of this data, together with any data provided by you or
others via the payment or permit systems. Correspondence, telephone or in person, by Absolute Parking
Management Ltd and any authorized sub-contractor to check compliance with the Parking Contract. Furthermore,
you consent to the processing of this data to request registered keeper details from the DVLA, where the Parking
Contract is not adhered to and a) enforcement is undertaken remotely via ANPR, or b) the Parking Charge notice is
issued manually by the attendant, but remains unpaid.
Parking Charges incurred: a) will be notified to the registered keeper by post, where the ANPR system identifies
non-compliance with the Parking Contract, and may be re-issued to the relevant driver on receipt of the drivers
valid name and address: or b) will be notified to the driver, where an attendant identifies non-compliance with the
Parking Contract, and may subsequently be notified to the registered keeper. Personal data may also be shared
with the BPA, POPLA, mail service providers, credit reference, agents, collection agents, or solicitors for this
purpose and any authorized sub-contractors. A reduction of 40% of the Parking Charge will be available for a
period of 14 days. Failure to pay the Parking Charge within this period will result in the full amount becoming
payable. Where Parking Charges remain unpaid beyond 28 days, recovery charges in respect of further action may
apply. A charge reflecting the cost to Absolute Parking Management Ltd may apply for payments made with a
credit/debit card.

Signage

There are 17 highly visible signs on site including (Installed June 6th, 2016 [evidence in section
B.1]):
● 2 “P” Signs (450mm x 450mm) at the entrance of the site.
● 7 Terms & Conditions signs attached to posts (800mm x 600mm).
● 5 Terms & Conditions signs attached to walls (800mm x 600mm).
● 1 Disabled P&D sign situated at Disabled P&D location (450mm x 450mm).
● 2 “Please Enter Correct Vehicle Registration Details On The Touch Screens Provided” located
above the touch screens in the bar of the Mallard.
(Photographs attached confirm that signage can clearly be observed throughout the car park including
the entrance, both day and night [Section B.2])

Grace Period

Absolute Parking Management LTD operates a grace period of 10 minutes at the site, as suggested by
the BPA Code of Practice. This grace period allows the motorist time to enter the car park, read the
signs, and decide whether or not they wish to be bound by the terms and conditions of parking.

ANPR System & Enforcement

Management of the Mallard Car Park is conducted by ANPR cameras, which take photographs of
vehicle registration numbers as vehicles enter and leave the car park. The vehicle registration number
images are compared with registration details entered into the touch screens. Any vehicle that
remains on the car park for longer than 4 hours and/or fails to enter their correct registration details
in the said touch screens is issued a Parking Charge Notice. The images showing entry and exit of the
appellant’s vehicle at the Mallard Car Park are attached (Section C).

BPA Compliance

The signage and terms and conditions within The Mallard Car Park fully comply with the
recommendations of the BPA Code of Practice. Signage is prominent and present at the entrances and
at regular intervals throughout the Mallard car park.

Parking Contract

When parking on private land a motorist freely enters into an agreement to abide by the conditions of
parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she
abides by the clearly displayed conditions of parking. It is clear that the terms of parking state that a
vehicle’s correct registration details must be entered on the touch screens provided at the bar of the
Mallard and they are allowed no more than 4 hours free parking or the motorist would face liability for
a Parking Charge Notice, as is stated on the Terms and Conditions signage:
By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and
conditions (the “Parking Contract”) and are authorised to park only if you follow these correctly, including making
payment where directed, entering your registration details via the payment and/or permit systems. If you fail to
comply, you accept liability to pay the fee for unauthorised parking (the “Parking Charge”).
By failing to enter registration details and/or stay for a duration of more than 4 hours, the driver
became liable for a parking charge notice as per the terms and conditions displayed.