****Help with POPLA appeal****

jack123456

Hi,

Just to update this one, I have complained to the hospital and spoken with someone there. They have said there's nothing they can do about the charge as the time and date is stamped on the image on the PCN. I will go ahead with POPLA now and will update this later with my updated appeal.

Thank you for your help everyone so far with this.

Umkomaas

Then when you win at POPLA you'll have the opportunity to copy everything to the Trust and ask them what excuses did they have for not cancelling it and putting you through all the stress and work of having to appeal this to POPLA.

jack123456

Dear Sir/Madam,

I am writing to appeal a PCN issued by Parking Eye, this was issued on 01/03/2017 for an alleged event that was on 23/02/2017 at Sunderland Royal Hospital. I am appealing as the registered keeper. I am exercising my right to not name the driver of the vehicle, nor will that be confirmed.

I am appealing on the grounds of:

• Parking Eye’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates given.
• 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.
• Faulty Payment Machine
• ANPR Accuracy and Compliance
• No Contract was entered into between the Parking Eye and the Driver or Registered keeper

1. Parking Eye’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates given.

I wish to make you aware that the date of the alleged event is incorrect; I have been made aware that the date of parking was 31/01/2017 and there was a machine malfunction with a parking machine to confirm this (PE0314). There was no visit made to the aforementioned place on the date stated in the parking notice given by Parking Eye Ltd. The Notice to Keeper (NTK) must comply 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’’


I am paying particular attention to the fact that the period of time that the notice must be received in the post is 14 days, as you can see by the below images, the dates on the machines are completely different from the dates stated in the alleged event. On the date in question of the parking event, I myself was at work during these times and I had the car with me, making it impossible for the car to be in the car park on the stated date. I work in Newcastle and this event was in Sunderland.

• The Operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

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

• Faulty Payment Machine

I have been informed by the driver at this point that the machine was not working properly; this meant that due to the failure of the machine to record the VRN correctly, it has shown as a failure against the VRN the payment made. I have been made aware that when the VRN and the payment was entered into the machine, it subsequently timed out, restarted and no ticket was produced, also, the machine did not give any money back so I am told. In good faith that the machine had accepted the money and the parking was paid for, the driver continued with what they were doing. I have been forwarded photo evidence of the machine in question and the number of the machine (PE0314) and these photos show as the Chester Road Wing car park. In the event that the machine had failed, there was no clear signage to confirm the next events if the machine was to fail.

jack123456

ANPR Accuracy and Compliance

As stated in point 1, the date of the alleged event is incorrect; this has with it proof in the form of 2 photographs showing the time and date stamped on the faulty payment machines.
I therefore require Parking Eye 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. As the parking charge is wholly based on the ability for the ANPR camera to accurately take images of entry and exit to the car park. It is vital that Parking Eye Ltd must produce evidence in response to these three 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 has been called into question and the operator could not rebut the point.


So, in addition to showing their maintenance records, I require ParkingEye 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.

5. No Contract was entered into between the Parking Eye 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. ParkingEye 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 ParkingEye 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 ParkingEye 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 request that ParkingEye 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.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours Faithfully,

jack123456

I have now sent in the appeal, so just a matter of waiting for the decision. Thank you all for your help! I will let you know the decision.

jack123456

Just received this from Parking Eye, any ideas?


06 June 2017
Reference: Parking Charge Notice - 022450/479698
Dear Sir / Madam,
Thank you for your correspondence in relation to the Parking Charge incurred on 23
February 2017 at 15:31, at Sunderland Royal Hospital - Arterial Road car park.
Whilst we note your request that ParkingEye make payment of the sum referred to within
your correspondence, we must confirm that all invoices issued to ParkingEye by
motorists, whether they concern an alleged loss, cost or expense, either following
payment, appeal or any other issue, are categorically rejected.
You have not formed a legally binding contract with ParkingEye under which you have
acquired any right to invoice ParkingEye and/or seek payment for goods or services, and
the sum sought is therefore rejected.
Yours faithfully

Umkomaas

Just received this from Parking Eye, any ideas?

Likely to be in regard to this in your initial appeal.

Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

jack123456

Ahhh makes sense, thank you!

Coupon-mad

Sunderland Royal Hospital

They always cancelled any PCNs when I emailed and complained for people who were patients. Sorry I had no time to read right back in the thread, but hasn't Audrey cancelled this for you yet when you complained to PALS?

jack123456

Unfortunately not, I complained and they just outright said no. I was hoping for better but got to see how the POPLA goes now.