POPLA Appeal - help needed

Delsbels

Redx, my apologies you're right. Here's the gist:

A bit about the PCN: on its arrival, we ignored it and it was misplaced (poss shredded) as advice was given off an uneducated forum saying not to respond/destroy. We've never had to deal with one of these before so followed this advice. Anyway, following a reminder we started looking into further and then I found this forum.

The pcn (parkingeye) is for insufficient time purchased (2hrs). The clocked time on arrival/departure is 2hr 24mins. We were parked in English Gate Plaza (north carpark) Carlisle just behind the Rambler pub, I displayed my BB as I've got mobility isssues. On entering I got out at the pay point and payed and then parked up (as I said I've got mobility issues so this seems logical) we went on our way. On our return I had a young children with me who needed the loo and couldn't wait so I took them into the pub behind the carpark before getting back to the car. It then took me a little time to get them clicked in etc before departing. I checked the pay&diaplay as I left to see if you could purchase additional time but it didn't make it clear what the process was for this so we decided just to leave as we thought it was over by 10mins max.
I sent the 1st appeal as advised when I 1st posted and as expected it was rejected and a POPLA ref given and now I'm here trying to put together a 2nd stg appeal (with 2days til the deadline). The 1st problem is I can't remember in the original pc notice whether they had put the paragraph in regarding the NTK/pofa etc?? I haven't got the document so I don't know but I can't remember reading anything to do with that. I've got to send this appeal of by the end of tomorrow and because I've been back and forward to hospital and have been dealing with a lot of pain I've let it slip, can you please help? Thank you x

Delsbels

This is what I have so far, am I way off?

POPLA APPEAL DRAFT key point being grace periods due to disability.

Appeal re: POPLA code: 606 v ParkingEye Ltd
1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.
I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver. I contend that I am not liable for this parking charge on the basis of the below points: 1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used. Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:- ’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’ The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’’ The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged event. Even if they had posted it on the same day that they describe as the ‘Date Issued’ (which ParkingEye never do in any case at all because they use a third party batch-mail system, Whistl or iMail or similar, which adds up to a week before a letter is posted) it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b). This means that ParkingEye have failed to act in time for keeper liability to apply. Furthermore, it is clear that ParkingEye know this because they have used the alternative version of their template ‘Parking Charge Notice’– the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA. The PCN also fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states: ’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose and the other facts that made those charges payable...’’ This NTK stated that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted (neither of which is a ‘fact’). In their rejection letter ParkingEye revealed too late that they contend that ‘insufficient time was paid for’ on the date in question. Not only is this not true but it is an alleged ‘fact’ that the NTK failed to state in the first place. If this operator should change their story yet again for POPLA and perhaps try to show that a ‘wrong VRN’ gave rise to the charge, POPLA please note that that would prove my point that this NTK has no ‘facts’ and also fails to describe those parking charges which they contend remain ‘unpaid’ by the driver. So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.
Appeal re POPLA code: 606 v ParkingEye Ltd
2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
The operator has not shown that the individual who it is pursuing is in fact 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, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK. 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 –they will fail to show I can be liable because the driver was not me. 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.''No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''
Appeal re POPLA code: 606 v ParkingEye Ltd
3)Grace periods.
British Parking Association Code of Practice 13.1 – 13.4 states:
13 Grace periods
13.1 Your approach to parking management 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.
13.2 You 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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end
of the parking period should be a minimum of 10 minutes.
Also in view of the mobility problems of the driver, which is also covered by the BPA CoP which correctly observes that disabled people may take ͚much longer͛ to access machines. In this case, a registered keeper with a chronic disability which significantly affects mobility and therefore requires the use of a Blue Badge vacated the vehicle to purchase a ticket before the vehicle was finally parked. On return, with very young children requiring the toilet before journeying a toilet break was made at the pub directly adjacent to the carpark. Allowing sufficient time to secure children in child safety seats and load pushchairs into the boot and finally depart would take considerably longer the a more able bodied customer.
Appeal re POPLA code: v ParkingEye Ltd
4)The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.
No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable. This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held: ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “ But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ‘’And at the Supreme Court it was held at 14. ''...where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty...''At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''Clearly a charge ‘out of all proportion’ to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of an unexplained event is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.
Appeal re POPLA code: 606 v ParkingEye Ltd
5)The Consumer Rights Act 2015 supports my position that the failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable.
http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted- Schedule 2:'Consumer contract terms which may be regarded as unfair':’’ A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations...’’ ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.This case is not comparable. The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair: http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/3’’ Prohibition of unfair commercial practices’’:3.—(1) Unfair commercial practices are prohibited. (2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair. (3) A commercial practice is unfair if—(a) it contravenes the requirements of professional diligence;and(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer... (4) A commercial practice is unfair if—(a) it is a misleading action under the provisions of regulation 5; (b) it is a misleading omission under the provisions of regulation 6; ‘’ I have shown that ParkingEye have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.
Appeal re POPLA code: 606 v ParkingEye Ltd
6)The signs are not prominent, clear or legible from all parking spaces.
The signs and the machine tariff board (and the small screen itself on the machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted68 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. It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:- http://imgur.com/a/AkMCN The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:- http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm As evidence that this is inadequate notice, Letter Height Visibility is discussed here:- http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx' 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. However, if you...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:- http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html'' 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.''Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'. I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up.
Appeal re POPLA code: 606 v ParkingEye Ltd
7)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 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 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 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 Also Parking Eye have provided no evidence that the ANPR system is reliable. The 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 Parking Eye 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. Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained.

Coupon-mad

You have all week to perfect this. POPLA codes will work for 30+ days.

The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged event.

Really?

That and the use of the old and never proven Fox-Jones wording suggests to me you've blind-copied someone's old ParkingEye appeal. Not a good plan, none of that is about your case and most of that looks to have been written as long ago as 2014.

Use the templates in the NEWBIES thread post #3 instead, and show us your new draft mark #2. You have days yet!

Carthesis

The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged event.

Is this right? Was there a windscreen ticket / NtD before this, or was it just parking -> 3 weeks -> Postal NTK?

If so, then they haven't established keeper liability under POFA.

Delsbels

No windscreen ticket just postal. Yes it was around that but as I've no longer got the original I can't be exactly sure how long it was before I received the PCN I just know it was a few wks later. Am I being careless if I say that and it turns out it was 2weeks?

Delsbels

Couponmad, I copied bits from a couple of the links on post #3 in the newbies thread, was this not a good call?

Coupon-mad

I can recognise some of those points as being the templates now when I read it more closely, but the shift in the formatting in your post (I can see you've copied it from a word document with a header) has shoved them all into a wall of words, rather than having gaps between each point. Even the BPA CoP 7.3 is all a wall of words rather than one line under another, so it was really hard to pick out that you'd used the template. Difficult for us to read when skim-reading!

Seeing the 'Fox-Jones' case made me think that point was old, because we don't really use 'ANPR' as a POPLA appeal point. No POPLA case has been known to be won on that point because a consumer can't prove any issue with ANPR (unless there is a provable double dip situation). The only thing we normally say about ANPR is that the signs do not state how the data collected will be used.

I think your POPLA appeal looks like it is almost there, with a few tweaks. It talks about a tariff board & pay & display machine, so where was it and was the suggestion that the driver had not paid for sufficient parking time?

You also say this, I've just noticed:

Also in view of the mobility problems of the driver, which is also covered by the BPA CoP which correctly observes that disabled people may take ͚much longer͛ to access machines. In this case, a registered keeper with a chronic disability which significantly affects mobility and therefore requires the use of a Blue Badge vacated the vehicle to purchase a ticket before the vehicle was finally parked. On return, with very young children requiring the toilet before journeying a toilet break was made at the pub directly adjacent to the car-park. Allowing sufficient time to secure children in child safety seats and load pushchairs into the boot and finally depart would take considerably longer the a more able bodied customer.

It reminds me of marganne's case just won today v ParkingEye re Aire Street pay & display with crappy signs and rubbishy machines and a blue badge holder. Very similar I think, looking again at what you've said - so have a look at the one used in her case and maybe come up with a hybrid version of the two, dropping the final bits about the Fox-Jones case. And drop anything about kids toilet breaks, it detracts from the other points.

Delsbels

Couponmad I apologise, I have a MacBook and it does that to templates and annoys the hell out of me! I cannot find an app that prevents it. Ok, so I'll drop the Fox-Jones ANPR blurb and remove the points re: kids loo break. And I'll have a go putting together the points you've highlighted and repost. Thanks

Delsbels

Coupon-Mad I would appreciate your advice on Draft 2 please, do I need to get myself pics of the signs/pay&display? Im not sure on exact dates on when I received my PCN and whether it had the para re: POFA schedule 4, do I need to remove and replace if not 100% sure?
DRAFT 2

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question.

Appeal re: POPLA code: 606 v ParkingEye Ltd
1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

I contend that I am not liable for this parking charge on the basis of the below points: 1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.
Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.
ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:- ’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. ’’The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’ The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived almost 3 weeks after the alleged event. Even if they had posted it on the same day that they describe as the ‘Date Issued’ (which ParkingEye never do in any case at all because they use a third party batch-mail system, Whistl or iMail or similar, which adds up to a week before a letter is posted) it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).

The PCN also fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine.
7(2) states: ’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose and the other facts that made those charges payable...’’
This NTK stated that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted (neither of which is a ‘fact’).
In their rejection letter ParkingEye revealed too late that they contend that ‘insufficient time was paid for’ on the date in question. Not only is this not true but it is an alleged ‘fact’ that the NTK failed to state in the first place. If this operator should change their story yet again for POPLA and perhaps try to show that a ‘wrong VRN’ gave rise to the charge, POPLA please note that that would prove my point that this NTK has no ‘facts’ and also fails to describe those parking charges which they contend remain ‘unpaid’ by the driver. So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was.

If ParkingEye want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and ParkingEye have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that ParkingEye have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach.

The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14

Appeal re POPLA code: 606 v ParkingEye Ltd
2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

The operator has not shown that the individual who it is pursuing is in fact 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, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant 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 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 a very similar case with the same style NTK in 6061796103 v 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.''

Appeal re POPLA code: 606 v ParkingEye Ltd
3)Grace periods. Disabled motorists.

British Parking Association Code of Practice 13.1 – 13.4 states:
13 Grace periods
13.1 Your approach to parking management 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.
13.2 You 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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

16.3 Operators of off-street car parks do not have to recognise the Blue Badge scheme. But many choose to do so to meet their obligations under the Equality Act. Although a Blue Badge is not issued to all disabled people it is issued to those with mobility problems. So it is a good way for parking operators to identify people who need special parking provision.
16.5 If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.

“In view of mobility problems covered by the BPA CoP which correctly observes that disabled people may take ͚much longer͛ to access machines”.

In this case, the registered keeper who suffers with a chronic disability which significantly affects mobility and therefore requires the use of a Blue Badge, vacated the vehicle to purchase a ticket before the vehicle was finally parked. On return, allowing sufficient time to secure children in child safety seats and load pushchairs into the boot and finally departing would take considerably longer than a more able bodied customer. It is therefore not exceptional to take twice as long as an able bodied customer to enter/leave a carpark. Although as with most private car parking facilities “no concessions” are made in the way of free parking for blue badge holders however, it is surely not inconceivable to offer an extended grace period for a paying disabled customer to load a vehicle and exit safely.

Appeal re POPLA code: 606 v ParkingEye Ltd
4)The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable. This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.
At 47 in the Court of Appeal Judgment, it was held: ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “ But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ‘’And at the Supreme Court it was held at 14. ''...where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty...''At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter.

His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''Clearly a charge ‘out of all proportion’ to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man.

A huge charge arising under the excuse of an unexplained event is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

Appeal re POPLA code: 606 v ParkingEye Ltd
5)The Consumer Rights Act 2015 supports my position that the failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable.

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted- Schedule 2:'Consumer contract terms which may be regarded as unfair':’’ A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations...’’ ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.This case is not comparable. The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair: http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/3’’ Prohibition of unfair commercial practices’’:3.—(1) Unfair commercial practices are prohibited. (2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair. (3) A commercial practice is unfair if—(a) it contravenes the requirements of professional diligence;and(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer... (4) A commercial practice is unfair if—(a) it is a misleading action under the provisions of regulation 5; (b) it is a misleading omission under the provisions of regulation 6; ‘’ I have shown that ParkingEye have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.

cont...

Delsbels

DRAFT 2 cont...

Appeal re POPLA code: 606 v ParkingEye Ltd
6)The signs are not prominent, clear or legible from all parking spaces.

The signs and the machine tariff board (and the small screen itself on the machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted68
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. It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear.
The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:- http://imgur.com/a/AkMCN The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:- http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm As evidence that this is inadequate notice, Letter Height Visibility is discussed here:- http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx'
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. However, if you...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:- http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html''
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.''Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.
I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up.

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper right hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge ParkingEye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge ParkingEye that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

Appeal re POPLA code: 606 v ParkingEye Ltd
7)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 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 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 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. The 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. Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained.

I contend that ParkingEye Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles ParkingEye Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to ParkingEye Ltd to prove otherwise so I require that ParkingEye Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between ParkingEye Ltd and the owner/occupier, containing nothing that ParkingEye Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.