Successful appeal against Minster Baywatch - the whole rotten saga

CaroM

I've already put a post on here about the PCN I received in early September from Minster Baywatch - the basics for those searching for posts relevant to their own cases is that my car was seen entering a car park at 08:25 and leaving at 12:42, with the pay-and-display ticket showing times of 08:32 and 12:32, so there was 19 minutes unaccounted for. Minster Baywatch decided to charge me £100 for that, ignoring the grace periods required by the BPA, of which they are a member. I thought I'd add this post so people can see what the appeals process actually looks like - by all means crib stuff as I've got it from other links on this site (thanks guys and girls!), or wrote my own in a similar style.

I sent my appeal to MB as per the suggestions from this forum (identify who the driver was, your signage is crap, your notice is non-compliant etc), and waited for a POPLA code which I explicitly requested. MB pratted around for ages, firstly sending a letter back saying they'd take my appeal as my final appeal unless I contacted them again, then when I didn't contact them they asked me if this was my appeal (it had dodgy written all over it!), so I complained to the BPA and contacted POPLA on a generic email address asking them to help me get the code.

When I did (finally) got it, I submitted a longer appeal to POPLA which is here:

The standard grace periods have not been observed
As per the Notice to Keeper issued by Minster Baywatch, the time of the vehicle entering and leaving the car park was recorded as being 08:25 and 12:42. The dashboard parking ticket bought on the day recorded an expiry time of 12:32, with £3.60 having been paid into the machine (above the amount of £3.50 required for parking for 4 hours on the site, however the machine did not extend the ticket time). The vehicle is then shown to be attempting to depart the car park behind another vehicle waiting to move into traffic, still within the grace period required by the British Parking Association's Code of Practice paragraph 13.4 which states:
"the Grace Period at the end of the parking period should be a minimum of 10 minutes".
Furthermore, the Code of Practice also states that Operators "must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice" and that Operators "should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action".
In this case, Minster Baywatch has not observed the necessary grace periods, and additionally has not taken into account a small notice displayed on the ticketing machine that warns drivers that it does not accept 5p or 10p coins as payment. The grace periods should accordingly be observed even more favourably towards drivers, as there is no on-site attendant at the car park in question and no establishment within a 5-minute walk where correct change may be obtained. As per the photograph included, the notice regarding appropriate change is at the bottom of the machine and observable only after attempts have been made to purchase a parking ticket.


The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.
In this case, no other party apart from an evidenced driver 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.

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.''


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
I believes that the signage on-site is non-compliant with the BPA's Code of Practice. The signs are badly placed for a car park with approximately 70 spaces, and use a barely legible size of small print. The signs in this car park are very hard to read and understand. Since the Notice to Keeper ticket was issued, the signage has been altered but is still non-compliant - evidence of this signage in the process of being changed was taken on 13 September 2016 and is attached.
There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:
imgur.com/a/AkMCN
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:
2.bp.blogspot.com/-eYdpholIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg
In this case of the appellant versus Minster Baywatch, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
In this case, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car. It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA's Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I require Minster Baywatch to provide strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself. The letters seem to be no larger than .40 font size going by this guide:
www-archive.mozilla.org/newlayout/testcases/css/sec526pt2

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
signazon.com/help-center/sign-letter-height-visibility-chart
''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:
ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-10000000175068392/g
''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA's Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgment is binding case law from the Court of Appeal and supports my argument, not the case of Minster Baywatch:
bailii.org/ew/cases/EWCA/Civ/2000/106

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.
So, for this appeal, I ask Minster Baywatch to provide strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require Minster Baywatch to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


The ANPR system is unreliable and neither synchronised nor accurate
The charge is founded entirely on two photos of the vehicle entering/leaving the car park at specific times. Minster Baywatch is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice. I require Minster Baywatch 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 Minster Baywatch 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 from 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 Minster Baywatch 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 Minster Baywatch in this car park is unreliable.
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. The BPA Code of Practice 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.''
Minster Baywatch fail to operate the system in a 'reasonable, consistent and transparent manner'.


No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an un-redacted Code of Practice 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 Minster Baywatch is authorised to do and any circumstances where the landowner in fact has 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 Code of Practice) 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 Code of Practice defines the mandatory requirements and I ask Minster Baywatch to provide strict proof of full compliance regarding:
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

I have already had to contact the British Parking Association in regards to this Notice to Keeper from Minster Baywatch, as although I followed their instructions for submitting an appeal and requesting a code to get this matter adjudicated by POPLA, they attempted to subvert the process by not following their own internal policy or that of the BPA, and then said that they did not accept my initial appeal as being such. I believe they attempted to undermine the appeals process because they are well aware that they did not allow any of the necessary grace periods required of them, their signage is inadequate and their car parking monitoring system is flawed, and that their case against me as the vehicle keeper will not be successful. While I agree wholeheartedly that parking law enforcement is important and necessary, it is equally important that third parties such as Minster Baywatch do not take advantage of what I can only assume they view as 'easy money' i.e. drivers who receive a ticket through the post and pay it without looking into the details or disputing it.
I fully expect POPLA will investigate this matter thoroughly and fairly, and shall wait to receive news of its dismissal.

CaroM

It then got a bit weird as I used the POPLA code given to me by MB to make the appeal (you can't log on to POPLA's website without it), but then got repeated emails from POPLA telling me I'd inputted the code incorrectly or to confirm the code again. I kept it polite but it was bloody irritating, and asked POPLA to investigate what the problem was (I even send a pic of the code!) and eventually I got the evidence pack from MB. This is the gist of their argument, with their so-called defence of the code problems included:
Case Summary and Rules/Conditions
Case Summary PCN 5146784
Site Rules
Pay & Display – All users must pay for their parking duration in full either by using the Pay & Display Machine on this site or by using the appropriate Pay by Phone / cashless payment application (ensuring the correct site code is entered), If you have underpaid for the parking period, you must top up your parking by purchasing an additional session. Ensure that the total time from all purchases is equal to or greater than the duration you have stayed at this site
Reason For Issue:
Parking fee covering visit duration was not paid in full
Case Summary:
On 25/08/2016 at 12:42, Miss Mooney’s vehicle, registration *******, received a parking charge at our York, Wigginton Road site for not paying for the full parking duration that occurred. As can be seen by the ANPR camera photographs, Miss Mooney’s vehicle entered the site at 08:25 and left the site at 12:42. We can confirm that this parking duration of 4 hours and 17 minutes was not paid for in full. This is a breach of the clearly displayed site rules which state, “Pay & Display – All users must pay for their parking duration in full either by using the Pay & Display Machine on this site or by using the appropriate Pay by Phone / cashless payment application (ensuring the correct site code is entered), If you have underpaid for the parking period, you must top up your parking by purchasing an additional session. Ensure that the total time from all purchases is equal to or greater than the duration you have stayed at this site”. As such, Miss Mooney’s vehicle received a parking charge.
In her initial appeal to Minster Baywatch, Miss Mooney sent in the following:
“Dear Sirs Re:
Charge Reference Number *******
I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.
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.
Yours faithfully, C Mooney”
In response to the above submission, Minster Baywatch sent a letter back to Miss Mooney, (see Original Representations section of this document), stating that as she is refusing to name the driver, she as the keeper of the vehicle, in accordance with Schedule 4 of the Protection of Freedoms Act 2012, will be held liable for the parking charge. We asked her to clarify whether she still wished to process her initial submission as an appeal. Miss Mooney then responded by letter stating:
“Dear Sir/Madam,
Re: PCN No. *******
Further to your letter dated 14 September 2016, I contacted your company to appeal the parking notice sent on 1 September 2016.
In your letter of 7 September 2016, you stated that I did not need to rewrite my appeal because my “previous submission will be taken as such”. Your letter of 14 September 2016 then states that I must reply to say whether this is my appeal or not. As you have not followed your own policy, I have contacted the British Parking Association this week and asked them to investigate your company since I can only interpret your last letter as an attempt to warp their code of practice in order to ignore my request for a POPLA Code.
Kindly reply by sending me the appropriate information as requested originally, or cancel the charge.
Yours Faithfully, C Mooney”

We then took the above as confirmation that Miss Mooney wished to process her initial correspondence as an official appeal.
Therefore, in response to her initial submission, Minster Baywatch refer to the Images section of this document where signage at this site can be seen. We assert that all signage at this site is 100 percent BPA compliant and meets as necessary requirements in accordance with the Code of Practice. Miss Mooney’s statement regarding signage is therefore factually incorrect. In relation to the landowner, Minster Baywatch assert that we are not at liberty to disclose this information to drivers. For POPLA’s use, we have added our License Agreement in the Other Evidence section of this document where the contract can be seen between ourselves and the landowner. Miss Mooney refusing to name the driver is the reason our letter dated 14th September was sent. We did not breach any BPA rules and followed policy by informing Miss Mooney she will be held liable as the keeper of the vehicle and whether she was okay with this where her appeal was concerned. With regards to Miss Mooney referring to a letter dated 7th September, we can confirm that there was a confusion with 2 letters that were sent out by Minster Baywatch, one dated 7th September and another that was sent 14th September, these can be seen in the Original Representations section of this document. Minster Baywatch assert that the BPA were made aware of this situation and that it was fully resolved after a second POPLA Code was issued, explained further in this paragraph. We refer to the Other Evidence section of this document which shows the emails sent between the BPA and Minster Baywatch confirming this. Minster Baywatch strongly deny that this confusion was to prevent Miss Mooney from receiving a POPLA code and that it was simply to gain clarity as to whether she wished to proceed as the Keeper of the vehicle, knowing that she would be held liable for the parking charge. Miss Mooney’s appeal was then processed on 27/09/16 and declined on 03/10/16. Miss Mooney contacted the BPA on 21/09/16 stating that she was unsure as to whether her appeal had been heard. The BPA brought this to our attention on the 03/10/16. A member of our staff responded to the BPA on the 10/10/16 to inform them the appeal decline letter had been processed on the 03/10/16 however due to an email domain error it had not gone through, which was brought to our attention when looking into the situation. The BPA asked to see a copy of this appeal decline letter. We sent this to them where they asked us if we were willing to create a new appeal decline letter with a new POPLA Code in order to give Miss Mooney the full 28 days to submit an appeal to POPLA, as she had already lost 7 days at this point as the initial decline was 03/10/16. Due to the errors that previously occurred, we agreed to issue a new appeal decline letter with a new POPLA Code to allow Miss Mooney the full 28 days to submit an appeal which was manually posted to her on the 10/10/2016. Regarding the parking charge, Minster Baywatch assert that the driver of Miss Mooney’s vehicle paid for 4 hours’ worth of parking on this date. As the vehicle was present at the site for a duration of 4 hours and 17 minutes, they were therefore in breach of the site rules by overstaying and exceeding the site grace period. This payment can be seen in the Other Evidence section of this document. We assert that at no point was there a reason provided for this breach of the site rules, therefore there was nothing to consider and the appeal provided by Miss Mooney was declined.

In her appeal to POPLA, Miss Mooney states:
“I have already had to contact the British Parking Association in regards to this Notice to Keeper from Minster Baywatch, as although I followed their instructions for submitting an appeal and requesting a code to get this matter adjudicated by POPLA, they attempted to subvert the process by not following their own internal policy or that of the BPA, and then said that they did not accept my initial appeal as being such. I believe they attempted to undermine the appeals process because they are well aware that they did not allow any of the necessary grace periods required of them, their signage is inadequate and their car parking monitoring system is flawed, and that their case against me as the vehicle keeper will not be successful. While I agree wholeheartedly that parking law enforcement is important and necessary, it is equally important that third parties such as Minster Baywatch do not take advantage of what I can only assume they view as 'easy money' i.e. drivers who receive a ticket through the post and pay it without looking into the details or disputing it. I fully expect POPLA will investigate this matter thoroughly and fairly, and shall wait to receive news of its dismissal.
I believe that the signage on-site is non-compliant with the BPA's Code of Practice. The signs are badly placed for a car park with approximately 70 spaces, and use a barely legible size of small print. The signs in this car park are very hard to read and understand. Since the Notice to Keeper ticket was issued, the signage has been altered but is still non-compliant - evidence of this signage in the process of being changed was taken on 13 September 2016 and is attached.
4 hours which should have cost £3.50 but the driver had to pay £3.60 as the ticket machine does not accept 5p or 10p coins and there is nowhere on site to provide correct change”
In response to the above points, Minster Baywatch refer our previous arguments.
For the above reasons, Minster Baywatch assert that the parking charge was correctly issued to Miss Mooney’s vehicle and her appeal was correctly declined.


If you read it, you'll notice most of it is quoting my argument back to me and not providing evidence to the contrary! POPLA asked me for my comments on their evidence, which was restricted by a character count on the website form so it was brief:
The grace periods have not been observed, a crucial point which has been completely ignored by Minster Baywatch. They state they are compliant with the BPA and are legally required to be so as per their licensing agreement. However they are ignoring this section of the code of practice and do not make any attempt to counter this point. Their statement implies parking time starts as soon as a car enters the site before a ticket has even been purchased, something that is not stated on any of their signage and directly contradicts the BPA's code. Additionally, they imply there is no grace period allowed on departure which, again, contradicts the BPA's code. I informed POPLA by email that Minster Baywatch are still actively pursuing collection of the PCN despite this appeal pending, which shows a clear disregard for the rules.

Minster Baywatch are resting their entire case on the times my vehicle was identified as arriving and departing the site. However, the "proof" they provided to support this still does not demonstrate the exact time my vehicle was photographed, as there is no timestamp on the images, and they did not provided any evidence as requested in my original appeal of when (or indeed if at all) the cameras at the site in question were last checked, adjusted, calibrated, and synchronised to ensure the accuracy of the dates and times of any ANPR images.

I believe the signage on site on the day the PCN was issued was non-compliant with the BPA's code and, having visited the site again after receiving Minster Baywatch's statement, know they are still not compliant. The photograph of the yellow sign submitted by Minster Baywatch is difficult to read, and the small print is not made any more clear even with computer enhancement. Regardless of the current poor signage, these were not the signs in place on the day when the parking charge was issued, as I submitted evidence captured on 13 September showing some of these new signs being installed.

Then there was a bit of a wait, and then I got a notice to log in to the website and found this waiting for me:

Decision
Successful

Assessor Name
Adele Brophy

Assessor summary of operator case
The operator case is that the parking charge notice (PCN) was issued as the appellants vehicle remained at the car park longer than permitted


Assessor summary of your case
The appellant’s case is that the operator has not allowed a grace period. The appellant has advised that he signage at the site is not adequate and has been changed since the parking charge was issued. The appellant has stated that the operator has not proved the person they are pursuing is the driver of the vehicle and is liable for the charge. The appellant has lastly advised that the operator does not have landowner authority.


Assessor supporting rational for decision
The terms and conditions of the site are, “Contract to enter/ park. If you have underpaid for the parking period you must top up your parking by purchasing an additional session. Ensure that the total time for all purchases is equal to or greater than the duration you have stayed. Parking Charge £100”. After reviewing the evidence provided by both parties, I am not satisfied that, the appellant has been identified as the driver of the vehicle at the time of the parking event. The operator is therefore pursuing the registered keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in the protection of freedoms act (POFA) 2012 must be adhered to. The operator has provided a copy of the notice to keeper; after reviewing this I am satisfied that, the operator has met with the requirements of POFA 2012. The operator has issued a parking charge notice (PCN) to the appellant because the appellant’s vehicle remained at the site longer than the paid for parking time. The appellant has questioned the operator’s authorisation to operate on the land. Section 7 of the British parking Association (BPA) code of practice states,“7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges. 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: The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined. Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement. Who has the responsibility for putting up and maintaining signs. The definition of the services provided by each party to the agreement”. Having considered the evidence provided by the operator, I am not satisfied that the contract dated 28 October 2012 has been provided by the landowner or its agent as there is no name or signature. On this basis, I can only conclude that while the operator may have the sufficient authority to operate on the land, it has failed to demonstrate this within the evidence provided for my consideration. As such, I must allow the appeal. As such I am unable to confirm whether the operator issued the parking Charge correctly. While I note the appellant has raised a number of grounds for appeal, as I have allowed this appeal these do not require any further consideration.





Hurray!, although I am slightly concerned that the main point of my argument (the grace periods) were completely ignored in favour of land authority. But hey ho!

I'm still considering whether to make a formal complaint about Minster Baywatch's antics.


Caro

therealhyper

Amazing result....and glad you stuck by it.

well done.

Ralph-y

well done ......

while you are in the complaining mood

please consider this ,,,

This is a campaign of asking people to keep sending Theresa May actual hard copies of the trash they've been deluged with. Let her advisers' desks overflow with annoying paperwork re PPCs.

No emails, all letters from genuine people pouring their hearts out. Write to your MP as well as Mrs May:

https://bmpa.zendesk.com/hc/en-us/articles/211923909-Why-not-write-to-your-MP

The more the better, write it yourself if you are able and enclose copies of the threatograms and rubbish thrown at you.

Do not do this by email - make your paperwork land with a thump on desks, just like it all landed in a very unwelcome way on your doormat.

Apparently the DCLG are looking to make an announcement before the year end so let's make MP's and Mrs May aware that action needs to be strong. You can be sure that the BPA and IPC suits are lobbying Parliament and meeting their friends in suits.

So let the consumers' voices be heard.


Ralph:cool:

beamerguy

CaroM wrote: »

While I note the appellant has raised a number of grounds for appeal, as I have allowed this appeal these do not require any further consideration.

Hurray!, although I am slightly concerned that the main point of my argument (the grace periods) were completely ignored in favour of land authority. But hey ho!

I'm still considering whether to make a formal complaint about Minster Baywatch's antics.


Caro

GREAT STUFF :beer:

I think everyone knows that Minster Baywatch is a scam. High profile scammers like Minster Baywatch, deserve a term inside, at the very least a community order to keep their area clean for 100 days.

A stint in the clink is best, these are scammers

Redx

a brilliant end to a brilliant story by somebody who stuck to their guns and reallly gave MB a good slippering !!

I agree that the grace periods should have been enough to seal the deal, especially when MB talked about "parking time" and not "time on site"

but they need landowners permission to even operate and clearly the document fell well short of the Ombudsman Services requirements

a win is a win , so well done and a lesson to others who get similar issues with any PPC