MET Parking Services PCN - Urgent Advice Please

Coupon-mad

DoaM wrote: »

Try searching for Posts rather than Threads.

Yes, I always search 'show posts' to find a relevant example on here. Works well.

MrBear85

Coupon-mad wrote: »

Yes, I always search 'show posts' to find a relevant example on here. Works well.

Thanks CM. I'm perusing some threads now looking for the right "grace periods" section. In the meantime, could I ask for your valued feedback on my draft appeal as it stands please?

Thanks very much

Coupon-mad

You could adapt this poster's #1 and #6, to make it even longer and driver MET barmy, so they won't want to waste time on it:

https://forums.moneysavingexpert.com/discussion/comment/72132442#Comment_72132442

I also notice that the rejection letter tells you for the first time, about an 'overstay' exemption clause that is not mentioned on the signs. Thereby admitting that the signage term '4 hours maximum stay' is in fact not the case because there is a method to claim overstay time but the signs don't even bother to tell a driver that!

Have an extra section called:

Untimely and misleading omission of material terms - breach of the CPUTRs 2008, CRA 2015 and the BPA Code of Practice


In that section, you could say that:

No-one at the Hockey training session - which finished later than usual through no fault of the driver - was aware of the terms on the signs, nor that they could have all apparently claimed more time. This was a secret clause which was a material fact vital to appear on the main signage. Telling a person in the rejection letter after the event/breach, is not 'timely' as far as a material fact is concerned in a contract!

But MET inexplicably omitted that exemption so drivers wouldn't know that it was even an option to claim added time inside the gym on arrival, thereby breaching Regulation 6 of the CPUTRs 2008 (misleading omissions):

http://www.legislation.gov.uk/uksi/2008/1277/regulation/6/made

Misleading omissions
6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a)the commercial practice omits material information,
(b)the commercial practice hides material information,
(c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely...

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

(3) In paragraph (1) “material information” means—
(a)the information which the average consumer needs, according to the context, to take an informed transactional decision...

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 with regard to the product.
(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''

Further, these hidden material terms also breach the BPA Code of Practice and the Consumer Rights Act 2015 and rendering the contract void for uncertainty, ambiguity and so this charge was not properly given and is in fact, unrecoverable in law, due to hidden, undisclosed terms.



Also you need this at the start:

The driver had stayed for evening floodlit hockey practice and had to leave via the entrance barrier because the automated exit barrier would not raise.

...yet doesn't the second picture still say 'exit'? I would take issue with that as well, point out the photo metadata cannot be right...

Leave in the ANPR section and the last one about 'no driver liability' even though the NTK actually looks compliant.

Add a final point as well:

No keeper liability - failure under the POFA 2012 to provide 'adequate notice' of terms/the charge and any 'relevant obligation'.

The fact is the charge fails the POFA Schedule 4 due to the failure to provide 'adequate notice' of the terms, including the vital exemption and the £100 parking charge itself. A driver would have no idea about any 'relevant obligation' nor 'relevant contract' (POFA Schedule 4 prerequisites) because only half the information was on the signs and they are unlit.

Under 1(1)The Schedule (and thus 'keeper liability' in law) only applies where—
(a) ''the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle...
(2) It is immaterial for the purposes of this Schedule whether or not the vehicle was permitted to be parked (or to remain parked) on the land.''

Absent any 'relevant obligation' or 'relevant contract' or legible signage displaying 'adequate notice' of the parking sum in large lettering that can be seen before the act of parking, the regime fails to meet the strict terms of the POFA (regardless of NTK wording) and therefore, a keeper cannot be held liable.

MrBear85

Thank you CM, this is really helpful.

I just want to clarify two points however before I commit to the additions:

1. A point of clarity; the hockey session attended by the driver was not at the gym itself but at a nearby facility (access to the usual parking facilities was restricted on the evening in question and a friend had advised of the 4 hours free at the gym nearby). Does this negate or change the point about the unspoken overstay clause in your opinion?

2. I agree that there may be some mileage in the challenge regarding the ANPR exit photos when the driver, in fact, left via the entrance. However, I just want to be clear that the driver did take the car right up to the exit barrier which could be when the exit ANPR photo was taken. Alternatively - it is impossible to tell from the photos - the ANPR exit photo could have been taken whilst the vehicle was travelling away from the car park along a service road that runs from the entrance back past the exit barrier. Does this affect the approach you would take to this point? I guess either way it either proves that the ANPR exit photo is taken too early, when a vehicle has not yet crossed the barrier or is taken in a location that is not part of the car park?

Thanks again for all your help.

Coupon-mad

I agree that there may be some mileage in the challenge regarding the ANPR exit photos when the driver, in fact, left via the entrance. However, I just want to be clear that the driver did take the car right up to the exit barrier which could be when the exit ANPR photo was taken. Alternatively - it is impossible to tell from the photos - the ANPR exit photo could have been taken whilst the vehicle was travelling away from the car park along a service road that runs from the entrance back past the exit barrier. Does this affect the approach you would take to this point? I guess either way it either proves that the ANPR exit photo is taken too early, when a vehicle has not yet crossed the barrier or is taken in a location that is not part of the car park?

I would explain that the driver found the exit barrier would not raise so the ANPR photo marked 'exit' cannot possibly be a true image of the car actually leaving past the exit camera, because no cars could leave that way at that time. Then make the suggestion that supports your case best, which is probably this:

it is impossible to tell from the photos - the ANPR exit photo could have been taken whilst the vehicle was travelling away from the car park along a service road that runs from the entrance back past the exit barrier.

MrBear85

Thanks everyone for your help, in particular Coupon Mad for their extremely useful input. Here is my second, and hopefully final, draft of my POPLA appeal.
At a whopping 16 pages(!) I hope this will be sufficient to scare the knickers off them, but I have a couple of specific questions before I submit:

1) Where I include images of the PCN and MET appeal rejection, should these be unredacted?
2) Where I include images of these documents should I include both pages or just the page I am directly referencing in the point?

I would like to submit it tomorrow (29th March) ideally as I calculate that to be the 28th day from MET appeal rejection letter. Thank you.

POPLA CODE xxxxxxxxxx

As the registered keeper of the vehicle, registration number xxxx xxxx, I wish to appeal against the parking charge notice xxxxxxx issued by MET Parking Services.
The driver had stayed for evening hockey practice and had to leave via the entrance lane because the automated exit barrier would not raise when approached, delaying the vehicle’s exit.

My appeal is based on the following grounds.
1. Insufficient signage and notice of the sum of the parking charge
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. Untimely and misleading omission of material terms - breach of the CPUTRs 2008, CRA 2015 and the BPA Code of Practice
4. BPA Code of Practice non-compliance - Grace periods
5. BPA Code of Practice non-compliance - Photo evidence
6. The ANPR system is neither reliable nor accurate.
7. No Driver Liability
8. No Keeper Liability

1. Insufficient signage and notice of the sum of the parking charge

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

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:

http://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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, 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.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. A number of the signs around the site are not illuminated either through poor placement or faulty lighting (see image 1 below). The reported date & time of the alleged contravention is 07/02/17 at 19:23. Records show that, on this date, sunset was timed at 17:01. Therefore, by 19:23, visibility of the already poorly legible signs would have been drastically reduced when not properly illuminated. 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.


Image 1: Evidence of signage not illuminated, further reducing legibility

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA 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 (see images 2 and 3 below). 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.


Image 2: Evidence that the sum of the parking charge is not made prominent on the signs used at this site. It is, in fact, obscured amongst other terms and displayed in the same inadequately sized font.

Image 3: Evidence that the sum of the parking charge in not displayed at all on the sign positioned at the entrance to the site.

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 put the operator to 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 .36 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further 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. 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:

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.''

So, a letter height of less than 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 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 operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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 put this operator to 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 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 submit that full terms simply cannot be read from a car before parking and believe that the photographic evidence I have submitted here supports this view. Mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.



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

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

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

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

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

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement



3. Untimely and misleading omission of material terms - breach of the CPUTRs 2008, CRA 2015 and the BPA Code of Practice

In their rejection of my appeal, MET Parking Services reference an 'overstay' exemption clause that is not mentioned on the signs (see image 4 below). Thereby admitting that the signage term '4 hours maximum stay' is in fact not the case because there is a method to claim overstay time but the signs do not convey this vital information.

No-one at the Hockey training session - which finished later than usual through no fault of the driver - was aware of the terms on the signs, nor that they could have all apparently claimed more time. This was a secret clause which was a material fact vital to appear on the main signage. Telling a person in the rejection letter after the event/breach, is not 'timely' as far as a material fact is concerned in a contract!

But MET Parking Services inexplicably omitted that exemption so drivers wouldn't know that it was even an option to claim added time inside the gym on arrival, thereby breaching Regulation 6 of the CPUTRs 2008 (misleading omissions):

http://www.legislation.gov.uk/uksi/2008/1277/regulation/6/made

Misleading omissions
6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a)the commercial practice omits material information,
(b)the commercial practice hides material information,
(c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely...

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

(3) In paragraph (1) “material information” means—
(a)the information which the average consumer needs, according to the context, to take an informed transactional decision...

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 with regard to the product.
(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''

Further, these hidden material terms also breach the BPA Code of Practice and the Consumer Rights Act 2015 and rendering the contract void for uncertainty, ambiguity and so this charge was not properly given and is in fact, unrecoverable in law, due to hidden, undisclosed terms.


Image 4: Copy of PCN appeal rejection letter from MET Parking Services referring to ‘overstay’ exemption clause not detailed on signage.


4. BPA Code of Practice non-compliance - Grace periods

The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

The CoP states:

“13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go...”
“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.”

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any signage to read and observe the terms, before deciding whether to accept them.

Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

Good car parking practice includes ‘grace’ periods
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

The observation period (at the start)

The ANPR photos on the PCN show an arrival time of 19:23 and a departure time of 23:55 – an alleged overstay of 32 minutes. (See image 5 below - Parking Charge Notice)

The BPA (Kelvin Reynolds is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors”.

The Virgin Active Nottingham Car park is a busy location attached to a popular gym facility it is not inconceivable that the car park would be very busy.

The alleged overstay, given Kelvin Reynolds' defined 'observation time' and the type of business at the location is certainly possible. Time would have been taken just driving in, no doubt in a queue, avoiding pedestrians and also waiting for other cars turning and reversing to park or leave, before reaching an empty bay then parking. After that, the driver must unload any required belongings including cumbersome sports equipment, locate the pertinent signage in the dark (it has already been noted that some of the signage is not illuminated), read the terms and conditions (feasibly by means of a magnifying glass and flashlight) and make a decision whether to accept those terms.

Upon making a decision to remain parked, any reasonable driver would then make note of the current time as the commencement of their parking. How would it occur to any reasonable person intending to park at this location that they might need to take into account the time elapsed since the ANPR detected their vehicle crossing an unremarkable threshold to enter the car park and the driver, having found a suitable parking space, parked with due care, located unlit signage in the dark and familiarised themselves with the terms and making the decision to remain parked? A process that could easily take upwards of 10 minutes, a fact that the BPA has publicly acknowledged.

The grace period (at the end)

The evidence provided (and refer to the comments relating to doctored photographs and unknown camera locations), purports to show that the vehicle arrived at 19:23, and left at 23:55 on the same day.

The same arguments relating to difficulty in arriving are made as to the difficulty of leaving the car park at the end of any stay. Additionally, the driver reports that at the end of the stay in the car park, they drove the vehicle up to the exit barrier but found that the barrier did not raise. The driver, being unfamiliar with the systems and procedures in place (which are not explained on any signage present), assessed that there may be a parking attendant viewing the area via CCTV from a control room and that they should wait for the attendant to remotely raise the barrier allowing the vehicle to exit. The driver reports that they waited for a number of minutes to allow for this before reassessing that the barrier was perhaps faulty and would not raise. At this time, the driver drove to the far side of the car park and left via the entrance lane where the barrier appears to be permanently raised.

Given that no evidence has been provided as to the trustworthiness of the timing system used to generate the date stamps attached to the photographs (please also see points relating to both these issues below) 32 minutes in total is perfectly within scope of both the MINIMUM grace periods (arrival and departure), the delay caused waiting for the exit barrier to raise and any potential error in time recording.

Taking both BPA 'Observation' and 'Grace' Periods into account, considering the unreliability of timestamped evidence on the photographs supplied and the unexpected delay at the exit barrier, I contend that the PCN was not properly given.


Image 5: Copy of ‘Parking Charge Notice’ issued to the keeper. The included photographs do not clearly identify the vehicle entering or leaving this car park or provide any point of reference as to the vehicle’s location at all. The metadata provided in white, overlay boxes appears to have been added after the fact.

MrBear85

... continued ...

5. BPA Code of Practice non-compliance - Photo evidence

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location information. By close examination of the photographs, the details are added as white overlay boxes 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 white boxes and text with authentic looking metadata. 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 MET Parking Services to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge MET Parking Services that they possess the technology to generate these precise types of photographs, as the date stamps have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

Furthermore, the BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The photo evidence included in the parking charge notice (see image 5 above) does not clearly identify the vehicle entering or leaving this car park; the “vehicle entering site” and “vehicle exiting site” images are almost entirely black with only the headlights and taillights of a vehicle visible. These could be images of ANY vehicle in ANY location as neither the registration number nor any other identifying features of the vehicle or its location can be discerned. The “registration no.” images have clearly been digitally altered when compared with the “entering”/”exiting” images which is in violation of the BPA CoP as stated above and, as they are shown out of all context, they cannot be reasonably connected with the “entering”/”exiting” images in which the registration cannot be seen.

As there are no markings on the photographs to indicate which specific camera took each photograph, and no other distinguishing features in the images other than the registration out of context, the distinct possibility that the photographs were taken of the vehicle when it was elsewhere and used in this instance cannot be dismissed. Furthermore, as stated in the above section regarding grace periods, the driver reports that due to a possible fault with the exit lane barrier, they were forced to leave the site via the entrance lane at the opposite end of the site. How is it therefore possible that the “vehicle exiting site” photograph was taken by a camera positioned at the car park exit lane and/or at the point in time where the vehicle had truly left the site? I submit that it cannot.

I again would challenge MET Parking Services to prove that the photographs as provided to me, and all associated metadata, are indeed genuine.



6. The ANPR system is neither reliable nor accurate.

The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA Code of Practice and the The Consumer Protection from Unfair Trading Regulations (2008) due to inherent failure to indicate the 'commercial intent' of the cameras.

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

MET Parking Services’ signs do not comply with these requirements because this car park signage failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. In fact, the language used (which is buried in small print) appears to be generic, rather than specific to this parking site, referring to “ANPR cameras and/or parking attendants”.
It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

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

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

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

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

http://www.legislation.gov.uk/uksi/2008/1277/regulation/6/made

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

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

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

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

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.


7. No Driver Liability

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 Protection of Freedoms Act (POFA) 2012 '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 Notice to Keeper (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.''

8. No keeper liability - failure under the POFA 2012 to provide 'adequate notice' of terms/the charge and any 'relevant obligation'.

The fact is the charge fails the POFA Schedule 4 due to the failure to provide 'adequate notice' of the terms, including the vital exemption and the £100 parking charge itself. A driver would have no idea about any 'relevant obligation' nor 'relevant contract' (POFA Schedule 4 prerequisites) because only half the information was on the signs and they are unlit.

Under 1(1)The Schedule (and thus 'keeper liability' in law) only applies where—
(a) ''the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle...
(2) It is immaterial for the purposes of this Schedule whether or not the vehicle was permitted to be parked (or to remain parked) on the land.''

Absent any 'relevant obligation' or 'relevant contract' or legible signage displaying 'adequate notice' of the parking sum in large lettering that can be seen before the act of parking, the regime fails to meet the strict terms of the POFA (regardless of NTK wording) and therefore, a keeper cannot be held liable.

I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.


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

Coupon-mad

Yes that should do it. Just save it as a PDF and upload it under 'OTHER' on the POPLA website.

1) Where I include images of the PCN and MET appeal rejection, should these be unredacted?
2) Where I include images of these documents should I include both pages or just the page I am directly referencing in the point?

The front pages, unredacted is fine, nothing to hide.

You will be putting in your name and address in the POPLA boxes anyway (you can put zeros in the phone number box).

MrBear85

Thank you Coupon-Mad, I will PDF as is and submit now.

Genuinely, really appreciate all the help :-)

MrBear85

DONE!! Now we wait.

I'll be sure to come back and update you all on progress.

Thanks.