Civil Enforcement Ltd PCN

sniper7

If anyone can assist me with my query I'd be very grateful.

Carthesis

Then your POPLA appeal needs to make it clear that POFA hasn't been complied with, in a number of respects:

1) outwith the mandatory timescales
2) doesn't state (as required) for what the charge is required - simply saying "Breach!" isn't good enough
3) in accordance with the latest POPLA report, you need to highlight that the signage on entry almost certainly doesn't say "parking begins on entry to the car park" in sufficiently large letters
4) grace periods
5) Equalities Act 2010 - reasonable adjustments for those with protected characteristics
6) all the other stuff that goes in a POPLA appeal

sniper7

Thank you for replying Carthesis.

So to confirm, I keep my original six headings but add these parts somewhere? Or I remove some or all of the headings I already have. I'm massively confused.

Just out of interest, why do I need to add anything else other than the timescales. Isn't it the case that if they don't comply with the timescales and the driver isn't identified, then that's it - case dismissed or am I missing something?

sniper7

Carthesis wrote: »

Then your POPLA appeal needs to make it clear that POFA hasn't been complied with, in a number of respects:

2) doesn't state (as required) for what the charge is required - simply saying "Breach!" isn't good enough

I've just noticed in the 'Response to Representation' from CEL which states 'We have no record of payment made for the above vehicle registration on the day in question.'

pappa_golf

in that case it looks like the wrong VRN was entered , or a faulty keypad caused the mistake to happen

you have the recept? , does it state the VRN on it ?

sniper7

No receipt or ticket kept unfortunately :-(

pappa_golf

your word , or your wifes , in court then , however they would be expected to produce a full printout from the machines log , along with a printout of ANPR data , at which point you state (correctly) that the keypad was faulty

sniper7

I'm happy taking it to court, but they haven't complied with the POFA dates, so why wouldn't POPLA dismiss it?

pappa_golf

ok , await popla , and hope that they act accordingly , but don,t rest your hopes on it ,, as they are a rule to themselves and logic is a word they cannot understand

sniper7

Thanks to everyone who have assisted with getting me this far. This is my 2nd POPLA draft appeal.

What are your thoughts please?

Dear POPLA,
PCN Number: xx
POPLA Verification Code: xxx

I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £100 Parking Charge Notice (PCN) issued by Civil Enforcement Ltd.

I submit the reasons below to show that I am not liable for the parking charge and would be grateful if you would repsectfully consider my appeal:

1. Civil Enforcement Ltd's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.
2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
3. ANPR Accuracy and Compliance
4. No Contract was entered into between the Civil Enforcement Ltd and the Driver or Registered keeper
5. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time.
6. No evidence of Landowner Authority
7. Payment was made and no Grace Period given (Section 13 BPA Code of Practice)



1. Civil Enforcement Ltd's Parking Charge Notice 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, and 12. Civil Enforcement Ltd have failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set 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 Parking Charge Notice/NTK that I have received was delivered by post. Furthermore, paragraph 9(5) states:

’’The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The Parking Charge Notice sent to myself as Registered Keeper showing a ‘PCN issue Date’ of 07/11/2016. This is almost three weeks after the alleged event, shown as 'Incident Date' 17/10/2016. The PCN was received even later than this.

This means that Civil Enforcement Ltd have failed to act within the 14 day relevant period. Furthermore, it is clear that Civil Enforcement Ltd know this because they have made no reference to ‘keeper liability’ or the POFA.

So, this is a charge that could only be potentially enforced against a known driver. Whilst I am the registered keeper of the car, the driver has never been admitted and there is no evidence as to the identity of that individual, which brings me to point #2:


2. 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. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA 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.

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


3. ANPR Accuracy and Compliance

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 (date and time) are added as a black overlay box on-top of the photos in the upper left hand corner they are then shown again in white in the bottom left hand corner (free text). It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and the free 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 Civil Enforcement Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge Civil Enforcement Ltd 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). Section 20.5a of the BPA CoP states '...All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.'

I also require Civil Enforcement Ltd 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 my vehicle entering and exiting at specific times. It is vital that Civil Enforcement Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence 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.

So, in addition to showing their maintenance records, I require Civil Enforcement Ltd in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park 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, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.


4. No Contract was entered into between Civil Enforcement Ltd and the Driver or Registered keeper

Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Civil Enforcement Ltd clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of Civil Enforcement Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Civil Enforcement Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I also need to highlight that the signage on entry doesn't say 'parking begins on entry to the car park.'

I request that Civil Enforcement Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.


5. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Civil Enforcement Ltd is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The alleged breach occurred during a dull rainy day and the signs were not visible (readable) or illuminated to be seen by any driver entering the car park at that time of the day; the car park itself was not illuminated as the public lighting was off. These are not mitigating circumstances but failure by Civil Enforcement Ltd to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are visible at the time of darkness.

The BPA Code of Practice, Appendix B, under Contrast and illumination:

Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective. Clearly none of these conditions were met (see attached photographs of non-bpa-compliant, non-obvious signage).

Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. Civil Enforcement Ltd did not provide me with evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.


6. No evidence of Landowner Authority

As Civil Enforcement Ltd 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 Civil Enforcement Ltd is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

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

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

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

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

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement


7. Payment was made and no Grace Period Given (Section 13 BPA Code of Practice)

The driver has informed me that a payment to park was made at the requisite time, the registration was entered at the machine and a ticket was issued and diplayed in the vehicle windscreen. In Civil Enforcement Ltd's correspondence to me (as keeper, dated 29.11.2016) they state 'We have no record of a payment made for the above vehicle registration on the day in question...' If this is the case I expect Civil Enforcement Ltd to produce a full printout from the machine log, along with a printout of ANPR data to prove this.

As per Section 13.3 of the BPA Code of Practice (latest version 6 - October 2015): '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.' Furthermore Section 13.4 states ' 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. I would argue does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.


The minimum amount of payment required (£1) would have covered the one hour parking time allocated with a 3 minute Grace Period.
Civil Enforcement Ltd have clearly not allowed this Grace Period in this case.


I therefore request that POPLA uphold my appeal and cancel this PCN.

Yours faithfully