Popla Appeal -

Matthews82

I wondered if anyone could help me with a POPLA appeal. I think I'm almost ready to send it but wanted a bit of reassurance that i haven't missed anything crucial out. I've read the forum and extensively searched the neewbie section and shamelessly pulled bits out to fashion an appeal.

This is my first appeal so a little nervous and apprehensive about sending it..

A little bit of info of the PCN:

The PCN was addressed in my partner's name and she was not the driver at the time. The PCN was issued due to being 20mins over the 2hrs free parking and there was no pay and display machines at that site.

Heres what i have got so far....

Re: ParkingEye PCN,
Reference code
POPLA Code:

Dear POPLA,

I am writing as the registered keeper of vehicle

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to lodge a formal appeal against the PCN issued by Private Eye to myself as registered keeper on the 15th October 2016 for the alleged breach of parking conditions at the Wythenshawe Etrop car park on the 11th October 2016.

I contend that I am not liable for the parking charge on the grounds listed below and kindly request that they are all considered.

1) Driving around a carpark does not mean the car is parked.
2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
3) No evidence to show that the APNR system is reliable nor accurate.
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 signs fail to warn drivers of what the ANPR data will be used for, breaching the BPA CoP and the CRA and the CPUTRs.
7) Unlawful Penalty Charge
8) Reference to ParkingEye vs Beavis.

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 relatively small car park and during the time the car entered it was a busy period for shoppers.
The time the vehicle entered the car park was 11:33am as the car park was full the driver had to wait approximately 15 minutes for a car parking space. Due to the limited information displayed on the signs the driver was unaware that the 2 hours parking began the second the vehicle entered the car park. After attending a meeting at Etrop Court the driver had to wait approximately 5 minutes to exit the car park due to other vehicles exiting the car park at the same time.
The length of time the car was parked and subsequently left the car park was within the free 2 hour parking allowance after considering the wait for an available space.

1) Driving around a car park does not mean the car is parked
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 2hrs and 20 mins which they claim. Thus far they have not provided this.
I put it to ParkingEye to show that the vehicle was parked in the car park for the duration of the alleged incident.

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

It is not disputed that the driver has not been identified. Even if POPLA (wrongly, because the law doesn't support this assumption against a keeper) believe that they can 'assume that the operator is pursuing the appellant as the driver of the vehicle' in cases where a non-POFA Notice (like this one) was served, there is still the issue of identifying that the individual the operator is pursuing, is the party who is liable.

I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. No assumptions can be made by POPLA nor parking operators, that 'driver liability' is possible in this situation just because I appealed as registered keeper, as is my right. Henry Greenslade, the previous POPLA Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.

“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...has no legal obligation to name the driver.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, 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 registered keeper without a valid NTK.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed. A very late and non-POFA 'postal PCN' is absolutely fatal to a case where the driver's identity remains unknown.

Thus in this situation, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.

3) 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. I request that you uphold my appeal based on this.
• 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 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.

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.

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.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue: 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.
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.''
ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'.


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).

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 kindly 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 Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

6) The signs fail to warn drivers of what the ANPR data will be used for, breaching the BPA CoP and the CRA and the CPUTRs.

Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

These signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the boundary of the car park. It is not at all clear that the cameras are not for security but are there in order to calculate 'total stay' for the purpose of generating parking charges for profit of the operator.

In fact, any reasonable driver would believe that they are authorised to park and rely upon the time on the printed receipt for paying & displaying and that the contract begins when the coins go into the machine and consideration flows between the parties. The time before that is not parking time but a mere 'invitation to treat'; a period that only starts to be deemed a contract after the signs have been read and the driver decides to stay.

This is the normal, accepted meaning of a 'parking restriction', which would never include the time outside on the road, nor when driving slowly round pedestrians with surfboards nor the time at the end, queuing to exit.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: 'Requirement for Transparency:

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible'.

and Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.'

I contend that the words 'total stay' conflict with the words 'parking tariffs' and the most favourable interpretation of that conflict and ambiguity, as drafted on the signs, is that the driver is paying a tariff to PARK. The driver could never guess that they are paying a tariff that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. Are drivers here meant to be psychic and look at their watch as they drive off the road? If they are then this must be transparently stated at that point, at the entrance.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial (not security) purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':



Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

7) Unlawful Penalty Charge

As 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 a maximum of two hours. The £70 charge is punitive and not any representation of any loss incurred.

8) Reference to ParkingEye vs Beavis

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
I believe that this charge is unrecoverable from myself as keeper, due to all or any of the above appeal points.

Thank you for your time.

Matthews82

I really do apologise for the dissertation

Molts

Make no apologies - this is exactly the sort of appeal that makes a lot of the fraudsters throw the towel in at the POPLA stage - I have won 3 at POPLA with the help of the awesome forum members on here. Its probably actually too short - mine converted to 6/7 page PDF's.

But wait for one of the experienced guys to comment on the detail. Way above my pay grade. I'm just strangely addicted to the fightback against the scammers!

pappa_golf

one might argue that 20 mins falls inside the BPA code of practice rules on grace periods

the ANPR system will have been at the entry/exit and recorded the time you were on site NOT parked

Guys_Dad

What is the exact wording re 2 hours parking? If it states the words "2 hours parking" then you should make more of that point and that it doesn't state 2 hours presence in the car park.

Matthews82

Thanks for you response guys,

Guys Dad: It says "Max stay 2 hours"

Pappa Golf: i thought it may fall within the grace period too, but was not sure whereabouts to sling it in?

Molts: 6/7 pages man that sounds intense, Its my first rodeo and want to make sure i stick it to the parking scammers.

Molts

I used Coupon-Mad's epic text on inadequate signage (POPLA decisions thread Pg 118 #2341) pretty much verbatim just inserting a few lines applicable to my particular case :D:D

Matthews82

Im proof reading it now, seen more than a few errors and need to make changes to make it more specific to my case.. Hopefully I will have it all sorted tomorrow.

Guys_Dad

Matthews82 wrote: »

Thanks for you response guys,

Guys Dad: It says "Max stay 2 hours".

Hmm. STAY is less beneficial to your case than PARKING but still arguable.

Matthews82

Guys Dad, I'm intending on arguing that point. Stay is very misleading and omitting the word Parking from the signage tricks drivers into thinking that their stay begins once parked.

Ive also noticed on the appeal rejection letter that Parking Eye have quoted the Beavis case to justify the PCN for parking longer than 2hrs. So i need to adapt the end of the appeal. Could someone kindly direct me to an appeal where i can see a counter argument for this??

Cheers

Fruitcake

As far as the word Stay is concerned, I think the man on the Clapham omnibus would interpret that as being stationary. You can't "stay" if you are moving. Driving in and around looking for a parking space and driving out through a busy car park is not "staying."