Popla Appeal -

Matthews82

Thanks Fruitcake.. I'll add that in

Matthews82

So here's my edit of the Beavis point.. is there any need to add any legal bumff into it or has the point been made?

8) Reference to ParkingEye vs Beavis

The Operator has attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge.
ParkingEye state: “It is well established that a valid contract can be made by offer, in the form of terms and conditions set out on the notice, and acceptance, in the form of one’s car in the space provided… and that parking constitutes acceptance.”
As the driver was unaware that time of the free stay began the second they entered the car park (due to inadequate signage) they spent between 10 and 15 minutes driving around waiting for an available space. This said the acceptance of the valid contract only began once the car was stationary in one of ParkingEye’s spaces.
I therefore ask ParkingEye again to provide concrete evidence to prove that the car was parked in one of their spaces for the entirety of the 2 hours and 20 mins which they claim it was.
The Supreme Court made it perfectly clear that the judgment in the ParkingEye v Beavis and Wardly case 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.

Fruitcake

You need to expand on that. The judges said that the decision was based solely on that site, so yo need to show the signs from the Beavis case where the wording was said to be clear and the "penalty" charge was in large font, prominent, and stood out from the rest of the sign.
Parking Lie also paid the landowner a grand a week which effectively gave them the same rights as the landowner.

You then need to point out how the site in your case differs from Beavis to show that the operator doesn't pay the landowner, and their signs are not prominent and clear, and that the "penalty" charge is not prominent. You need your own images of the signs at your site to show how they differ.
Pick the "best" sign that you can find to show this.

Matthews82

Thanks for the advice Fruitcake, the problem i have is that i dont live anywhere near the site where the car was parked. It was a visit to another city for a job interview and dont think i would be returning there any time due to work commitments.

Is there any way of wording it without images of the signs or would i just be shooting myself in the foot by not providing the images?

Matthews82

soooooooooooooo, ive manged to locate a couple of photo's one of a sign as you drive into the site which states Maximum 2 hours free parking.. which has no Parking Lie information on at all and another picture which is hard to read as it is taken from google maps which is a blue and white sign which says 2hours max stay.. even from the blury pic you can clearly see that there is no Penalty charge in Large lettering.. so you think that these will suffice?

Ive tried to add the pics but not sure how to do it on here as the picture icon links to a http:?? any ideas of how to do this?

Oh and how do i add the pics to my appeal do i just insert the pic to the word doc??

beamerguy

Hi, Coupon-mad is not ignoring you, she has been promoted at work and currently unable to post (service will be resumed shortly)

She has sent me an email for the OP with the POPLA appeal

As follows ......

could you ask this poster (below) to look at post #3 of the NEWBIES thread and tell us whether he/she has a blank space/missing POFA paragraph (non-POFA) PCN or not? A link in post #3 of the NEWBIES thread shows one. It should be the first question to any ParkingEye victim and must then lead them to write an extra appeal point - this should be a slam-dunk win for a non driver if they have a non-POFA PCN but no-one has asked yet:

The OP also needs to make it clear that the keeper was NOT the driver, at the start in the introduction.


And his point #6 talks about 'pay and display and putting coins into a machine' yet he said it's a free car park!


And he needs to replace this point #4 completely (below) with the template for no landowner authority (look, this one talks about Wright Hassall so he needs the template version, not this old thing!!):

''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).''

Matthews82

Hi Beamerguy, thanks for your response. I dint think Couponmad was ignoring me just busy helping out the masses. Congratulate her on her promotion for me.

The PCN i have does have the POFA bit on the bottom of the notice

Thanks for the pointers, im going to add the bit at the beginning in regards to the registered keeper not being the driver.

Will i be able to find the no land owner template in the newbie section ?

Point 6 in regards to the pay and display has been edited already i posted the wrong draft.

ill make these changes and re post the draft thanks again fir all the support.

Matthews82

Im really sorry could someone point me in the direction of this no land owner template? ive been searching through this wealth of information for over an hour now and been unable to locate it?


********Think ive found it -panic over lol

Matthews82

Sorry for the amount of post but ive figured out how to upload some of the pictures i have of the site.. Admittedly they are not great however being unable to return to the site due to work and other commitments and living over an hour away from the site i thought these may help.

The first is a picture of the entrance of the site where ParkingLie claim that signage clearly states that it is private land..



The second is one of two signs that have the PE logo on and 2hr Max Stay written and some text underneath...



And the last one is a pic from outside which shows how sparsely the signs are set out and two in black and yellow which i believe have the £70 fine wording on..




Do i need to add these pictures to appeal or wait to see if PE respond and provide evidence against my appeal?

Matthews82

Hi Guys,

Here's my amended draft i have been working on. Ive completely changed section 4 and inserted the template i found in the newbie section. Ive also amended the pointers which you advised me to change.

When you get a chance i would greatly appreciate any further advice and wisdom you could share with me.

Kind regards.

Matthews82


Re: ParkingEye PCN,
Reference code
POPLA Code:

Dear POPLA,
I am writing as the registered keeper of vehicle

---

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 must firmly state that although I am the registered Keeper I was NOT the driver at the time of this alleged offence. I reserve my right as registered keeper not to provide the name and address of the driver as I have no legal obligation to do so.

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 signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
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 drive around and 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. driving around, 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) No evidence of Landowner Authority

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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.