POPLA appeal help please?

LynseyDull

Hi there,
Would someone be able to have a read through of my POPLA appeal (on behalf of my elderly disabled parents) please? I've cobbled it together from lots of templates I've found and would be very grateful for any input from more informed folk!
Thanks so much.

Without Prejudice
PCN no #####
Car park no #####

I am the registered Keeper of the above vehicle.
The PCN was issued for an overstay of 11 minutes.
I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

Unlawful discrimination under the Equality Act 2010
No overstay in line with the Grace period.
Inaccurate ANPR
Unclear and non-compliant signage forming no contract


SITUATION
I visited the Waitrose Kingsthorpe store on June 30th 2017 with my severely disabled wife, who suffers from chronic progressive Multiple Sclerosis and who is unable to stand unaided. The car park was free for 120 minutes with no option to purchase extra time.

We had to wait several minutes for a disabled bay to become available. Loading my wife and wheelchair in and out of the car, and visiting the toilet, takes at least half an hour in and of itself, without attempting to do any shopping. Her potential time using the services provided is therefore reduced to just 90 minutes as the absolute maximum, yet the nature of her condition means she will be much slower than an able-bodied customer.

UNLAWFUL DISCRIMINATION – EQUALITY ACT 2010
I am sure the POPLA assessors are aware that under the Equality Act 2010, more specifically Chapter 20.3, service providers are required to make reasonable adjustments for persons with disabilities. This includes providing extra time for a disabled person to use the service. Failure to do so not only constitutes discrimination, in accordance with The EHRC Equality Act Code of Practice for Service Providers, more specifically paragraphs 14.58, 5.4 and 5.34 but also renders any contract unenforceable under the prevailing legislation, namely paragraph 142 of the Equality Act.
Because this car park is open to the public, the landowner, managing agent, on-site outlets and the private parking company are all 'service-providers' who have a legal duty to adhere to the 'Equality Act Code of Practice on Services, Public Functions and Associations' which became law on 6th April 2011. Indeed, POPLA is also a 'service provider' to the public and has broadly the same duties under the Equality Act 2010 and the statutory EHRC Equality Act Code of Practice for Service Providers as the operator and landowner/occupier client. The Chief Adjudicator will no doubt be familiar with these regulations and I am sure that all employees, including all POPLA Assessors, are trained in this law and know that they must demonstrate compliance when making decisions which affect disabled groups or individuals.
Herewith I include the relevant parts of legislation.

The EHRC Equality Act Code of Practice for Service Providers
14.58 Indirect discrimination will be intentional where the defendant (or defender) knew that certain consequences would follow from their actions and they wanted those consequences to follow. A motive, for example, of promoting business efficiency, does not mean that the act of indirect discrimination is unintentional.
5.4 Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
5.34 In a case involving disability if the service provider has not complied with its duty to make relevant reasonable adjustments, it will be difficult for the service provider to show that the treatment was proportionate.
142Unenforceable terms
(1)A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

A service provider which refuses to make a 'reasonable adjustment' without lawful justification is therefore in breach of their mandatory duties under the statutory Code.
In light of the above, we find that unlawful discrimination has occurred and therefore this appeal must be allowed.

NO OVERSTAY – GRACE PERIOD
I am sure the POPLA assessors are also aware that under the BPA Code of Practice, a grace period is afforded at both the beginning and end of the visit. Paragraph 13.2 states ‘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’. No time limit is specified because according to Kelvin Reynolds, Head of Public Affairs and Policy at the BPA, ‘it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability’.
Paragraph 13.4 of the BPA Code of Practice also states that ‘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.’
Let us temporarily leave aside the initial grace period on entry under paragraph 13.2, and consider the fact that the ten minute grace period on exit from BPA car parks has been in force since 1 October 2015. It could therefore be argued that this PCN of £100 has been issued for an overstay of a single minute, which is entirely unreasonable for an able-bodied person, let alone for someone who is unable to stand unaided. The charge is excessive and cannot be a genuine pre-estimate of loss to any of the services in question.
We also question the accuracy of the ANPR cameras, see below, and deplore the fact that they have not been calibrated to reflect the ten minute grace period. We allege that this is a deliberate oversight on the part of the operator, designed to trap as many motorists as possible.
Let us now reintroduce the initial grace period on entry and assume it is five minutes – amounting to a total of 15 minutes. Given that the alleged overstay is of just 11 minutes, this clearly falls within the allowed period. However, given the nature of the disability in question and the illegibility of the signs in the disabled bays (see Signage below), it can be argued that the initial grace period in this particular car park for a person with a physical disability would need to be much longer than five minutes as the signs are not legible from the disabled car parking bay. According to the Code of Practice the person must be allowed to park, leave the vehicle and read the sign, which in my wife’s case cannot physically be done in five minutes.
There has therefore been no overstay and thus this appeal should be allowed.

INACCURATE ANPR
The photos provided as ‘evidence’ by Smart Parking when viewed as part of the initial appeal process, show no visible time stamp. They merely show the vehicle in question at two different angles, presumably entering and leaving a car park. We therefore contest their claims as to the accuracy of the times of entry and exit.
We require Smart Parking to provide evidence that their ANPR system is reliable. The operator is obliged to ensure that their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice. The operator must present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the same time source (The NAAS standard requires synchronisation every 10 minutes with a GPS time source [4, 2.1.1].), and with the timer which stamps the photos. 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, and the operator is expecting us to believe their system is entirely infallible.
The operator must explain 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 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. Without a synchronised time stamp there is no evidence that the image is ever time stamped accurately. Therefore I contend that the 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 the operator to strict proof to the contrary.


The ANPR cameras are not identified upon entry to the car park. Simple entry and exit photographs purported to be from the stated car park do not prove unquestionably that the vehicle actually entered and left it, parked within its boundaries, and remained parked within it for the alleged time.

According to Paragraph 21.1 of the BPA Code of Practice, ‘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’.

The small print on the signage does not clearly state what the ANPR cameras will be used for. This is not transparent. The ANPR symbol on the entrance sign is too small to be visible under normal driving conditions, and appears to presume the driver recognises the symbol and will understand what it has been placed there for, which is not reasonable. Despite the arguments of the operator in its rejection of our appeal, we find that the signage breaches the BPA Code of Practice and therefore this appeal should be allowed.

While the camera equipment indicates entry and exit times, it does not demonstrate the parking period.
The BPA CoP requires that the use of ANPR cameras and the intended purpose of the data be conveyed to the motorist on the signage.
In this case the operator is claiming that the data is used as the starting time of a purported parking contract. Nowhere at the entrance or on any other sign does it state that the permissible parking stay begins when the driver’s VRN is recorded at an arbitrary point prior to parking, a point at which the motorist is completely unaware.

There was consequently no lawful contract to breach and even if there was it was not breached, as the stay did not exceed that permitted, as explained above.

The fact that there are no signs telling drivers how the data captured by ANPR cameras will be used is a breach of the ICO registration of any AOS member and a breach of the BPA Code of Practice. As such, drivers are unaware that the timing is being started before they park and after they leave the parking space, which is unfair under the Consumer Rights Act 2015 and a misleading business practice under the Consumer Protection from Unfair Trading Regulations 2008.



UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS

Paragraph 18.10 of the BPA Code of Practice states ‘18.10 So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.’
Attached as evidence is a photograph of the only sign visible from the bay in which we parked. There is no legible mention on this sign that a PCN could be issued for overstaying, and the signage is too high and too small to be read and understood by someone either parked in the bay, or in a wheelchair closer to the sign in question.
Therefore no reasonable adjustment has been made, and the elements of a contract have not been met. In ‘Excel Parking Services v Greenwood, case number 3QT60496 4/10/13’, the judge found in Mr Greenwood's favour on those 2 points; namely, there should have been a reasonable adjustment and the signs could not be seen from the car without requiring the disabled person to park and get out first.
The operator needs to prove that we actually saw, read and accepted the terms, which means that we and the POPLA adjudicator would be led to believe that a conscious decision was made to park in exchange for paying the extortionate fixed amount the operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.


While we appreciate that unlike the Equality Act, the BPA Code of Practice is not statutory legislation, the operator assures us in its rebuttal that its signs are BPA compliant (which we dispute). We must therefore conclude that it abides by the Code of Practice in all things and cannot pick and choose which points it will comply with.
As a last point, in its rebuttal of our appeal, the operator completely ignores the fact of my wife’s disability. This in and of itself is inherently disrespectful, all the more so because on receiving our data from the DVLA they will have been informed that the vehicle in question is a Motability car.

This entire incident has caused both myself and my wife inordinate amounts of distress, stress and upset.

In light of the foregoing, we respectfully request that this appeal be upheld and PCN Number ####### be withdrawn.

Redx

needs to have a bullet point numbered menu before the main appeal

each appeal section needs the same header and also be numbered

add a paragraph about NO LANDHOLDER CONTRACT (thereby putting them to strict proof that they have a valid and in date contract)

by all means put the EA2010 in there, but popla tend to say its not applicable to them and is a matter between the disabled persons and the PPC and LANDHOLDER in a court of law - so bear that in mind

if not so SMART have failed POFA2012 in any way (timekeeping , NTK errors etc) then add a POFA2012 paragraph too

Coupon-mad

Smart don't send 'POFA PCNs' so anyone who misses the 'no keeper liability' point is missing a trick, unless the parents already went and blabbed about who was driving (definitely named the driver)?

If in doubt, obviously add a 'NKL' point anyway, as shown in ALL other Smart Parking POPLA appeals on here.

LynseyDull

Thanks so much to both, no, no blabbing regarding driver so I'll definitely include the NKL point too.
Was frankly just getting tired of it and thought it was already long enough but best to be on the safe side and include everything under the sun I guess?!

Coupon-mad

Well seeing as it's the NKL issue that will win it, that's point #1, followed by the usual template point #2 that logically follows, the one about ''the appellant not being shown to be the person liable'', then 'no landowner authority'.

Your version had everything except the winning points! It also blabbed about who was driving so - OMG, urgent - remove this and check for other terrible slips like it!

I visited the Waitrose Kingsthorpe store on June 30th 2017 with my severely disabled wife, who suffers from chronic progressive Multiple Sclerosis and who is unable to stand unaided. The car park was free for 120 minutes with no option to purchase extra time.

Other parts of the appeal also go far too close to saying he was the driver, so go back over it and remove anything that implies he and his wife (who can't drive/stand) were the only two in the car - big mistake!

Also remove this point, it goes nowhere:

INACCURATE ANPR

LynseyDull

@CouponMad, what do you mean by 'Smart don't send POFA PCNs'?
The PCN was received 7 days after the event.
I understand that I need to delete the parts naming the driver but I don't now actually understand why NKL would apply? It seems to me Smart have met all the conditions but I must be missing something.

LynseyDull

Oh no. I've just realised that our wording of the original appeal began in the same way as this one, so does that mean we may have inadvertently named the driver? Technically speaking, either of them could drive the car, so saying 'we visited the store' could surely be open to interpretation? Argh.

LynseyDull

Sorry for the stream of consciousness...
I've just looked at the NTK - can I get them on para 9.2.c of schedule 4 as it states 'by 'either’ not purchasing appropriate parking time ‘’or’’ by remaining at the car park longer than permitted.', which is not a fact under 9.2.c
Plus no mention of the 28 days under 9.2.f...
Do these apply even if the driver has been named? (which they haven't as such).
The original appeal was filed on behalf of the keeper, but can I do the POPLA appeal as the keeper? Or does it need to be from the same person as the original appeal?
Thanks so much in advance.

Redx

you must ensure the appeal is done in the name of the person the pcn letter was sent to , so you can do it on their behalf , with their permission, but in their name etc (you are a third party helping them, like we are)

playing devils advocate , when they said "we visited the car park" or whatever , is it possible that I (or you) could have been the driver ?

surely it is conceivable ?

I know my lad has driven me and my wife in my car and parked on private land , because he is insured to do so , so has done so , and WE visited the shops on that retail park , or the doctors , or the hospital, used to do the same for my disabled mum

saying the royal "we" does not telll a PPC who was driving , there are millions of drivers in this country that could have chauffered the happy couple to their shopping trip location and back

CM probably means that the paperwork fails the POFA test or tests

LynseyDull

Yes absolutely, there are two people insured to drive the car, neither of whom is the keeper, so given that the original appeal to Smart didn't actually state who was driving as such, I'm going to risk it and include the point about NKL anyway and non-compliance with POFA on several sub paragraphs of 9.
Spent all morning re-drafting, I'd be grateful if someone could have another look when I re-post in a bit.

LynseyDull

Could I ask for input from wise owls on the final draft please? It's rather long...

Without Prejudice
PCN no #####
Car park no #####

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 following grounds and would ask that they are all considered.
1. Non-compliance of Notice To Keeper with Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
2. Unlawful discrimination under the Equality Act 2010
3. No overstay in line with the BPA grace period
4. Unclear and non-compliant signage forming no contract with driver
5. Inaccurate ANPR
6. No evidence of landowner authority

1.Non-compliance of Notice To Keeper with Schedule 4 of the Protection of Freedoms Act 2012 (POFA).

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 are met as stated in paragraphs 5, 6, 11 and 12. Smart Parking have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK, in accordance with paragraph 9 and the following subparagraphs.

Paragraph 9(2)(b) of the Act states that a notice must: ‘inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;’
The notice does not fulfill the requirement to inform the keeper that the driver is required to pay the charge, merely that ‘A Parking Charge Notice (PCN) is payable with respect to the vehicle registration mark…’. It does not state from whom the charge is payable.

According to both 7.2.b and 9.2.c, the notice must also describe the circumstances in which the requirement to pay the parking charges arose and the other facts that made those charges payable. This NTK stated that ‘By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted,…the parking charge is now payable’. The notice therefore fails to explain the circumstances which caused the charge to arise; instead it suggests 'either' this happened 'or' that happened, which creates uncertainty surrounding the circumstances. The statement is thus not one of fact and therefore the notice fails to comply with POFA.

According to 9.2.e, the notice must ‘state that the creditor does not know both the name of the driver and a current address for service for the driver’. There is no such statement anywhere on this PCN.
Moreover, in line with Paragraph 9.2.f, the notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid’.

No such warning is included in this Parking Charge Notice.
The POFA also stipulates that that the notice must specify the period of parking. The format of evidence provided (photographs from a number plate recognition camera showing the vehicle entering and leaving the car park) is not valid or sufficient on its own as a form of evidence of the parking period.
This Parking Charge Notice/Notice to Keeper quite evidently does not comply with the strict requirements of POFA 2012 Schedule 4 and therefore no keeper liability exists. It has been held by POPLA on numerous occasions that a parking charge cannot be enforced against a keeper without a valid NTK, and therefore this appeal should be allowed.

UNLAWFUL DISCRIMINATION UNDER THE EQUALITY ACT 2010
The car park was free for 120 minutes with no option to purchase extra time.
I am severely disabled, suffering from chronic progressive Multiple Sclerosis and am unable to stand unaided. We had to wait several minutes for a disabled bay to become available. Getting myself and my wheelchair in and out of the car, and visiting the toilet, takes at least half an hour in and of itself, without attempting to do any shopping. My potential time using the services provided is therefore reduced to just 90 minutes as the absolute maximum, yet the nature of my condition means I will be much slower than an able-bodied customer.
Under the Equality Act 2010, more specifically Chapter 20.3, service providers are required to make reasonable adjustments for persons with disabilities. This includes providing extra time for a disabled person to use the service. Failure to do so not only constitutes discrimination, in accordance with The EHRC Equality Act Code of Practice for Service Providers, more specifically paragraphs 14.58, 5.4 and 5.34 but also renders any contract unenforceable under the prevailing legislation, namely paragraph 142 of the Equality Act.
Because this car park is open to the public, the landowner, managing agent, on-site outlets and the private parking company are all 'service-providers' who have a legal duty to adhere to the 'Equality Act Code of Practice on Services, Public Functions and Associations' which became law on 6th April 2011. Indeed, POPLA is also a 'service provider' to the public and has broadly the same duties under the Equality Act 2010 and the statutory EHRC Equality Act Code of Practice for Service Providers as the operator and landowner/occupier client. The Chief Adjudicator will no doubt be familiar with these regulations and I am sure that all employees, including all POPLA Assessors, are trained in this law and know that they must demonstrate compliance when making decisions which affect disabled groups or individuals.
Herewith I include the relevant parts of legislation.

The EHRC Equality Act Code of Practice for Service Providers
14.58 Indirect discrimination will be intentional where the defendant (or defender) knew that certain consequences would follow from their actions and they wanted those consequences to follow. A motive, for example, of promoting business efficiency, does not mean that the act of indirect discrimination is unintentional.
5.4 Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
5.34 In a case involving disability if the service provider has not complied with its duty to make relevant reasonable adjustments, it will be difficult for the service provider to show that the treatment was proportionate.
142Unenforceable terms
(1)A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

A service provider which refuses to make a 'reasonable adjustment' without lawful justification is therefore in breach of their mandatory duties under the statutory Code.
In light of the above, we find that unlawful discrimination has occurred and therefore this appeal must be allowed.


NO OVERSTAY IN LINE WITH THE BPA GRACE PERIOD
I am sure the POPLA assessors are aware that under the BPA Code of Practice, a grace period is afforded at both the beginning and end of the visit. Paragraph 13.2 states ‘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’. No time limit is specified because according to Kelvin Reynolds, Head of Public Affairs and Policy at the BPA, ‘it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability’.
Paragraph 13.4 of the BPA Code of Practice also states that ‘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.’
Let us temporarily leave aside the initial grace period on entry under paragraph 13.2, and consider the fact that the ten minute grace period on exit from BPA car parks has been in force since 1 October 2015. It could therefore be argued that this PCN of £100 has been issued for an overstay of a single minute, which is entirely unreasonable for an able-bodied person, let alone for someone who is unable to stand unaided. The charge is excessive and cannot be a genuine pre-estimate of loss to any of the services in question.
We also question the accuracy of the ANPR cameras (see below) and deplore the fact that they have not been calibrated to reflect the ten minute grace period. We allege that this is a deliberate oversight on the part of the operator, designed to trap as many motorists as possible.
Let us now reintroduce the initial grace period on entry and assume it is five minutes – amounting to a total of 15 minutes. Given that the alleged overstay is of just 11 minutes, this clearly falls within the allowed period. However, given the nature of the disability in question and the illegibility of the signs in the disabled bays (see Signage below), it can be argued that the initial grace period in this particular car park for a person with a physical disability would need to be much longer than five minutes as the signs are not legible from the disabled car parking bay. According to the Code of Practice the person must be allowed to park, leave the vehicle and read the sign, which in my case cannot physically be done in five minutes.
There has therefore been no overstay and thus this appeal should be allowed.

UNCLEAR AND NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS
Paragraph 18.10 of the BPA Code of Practice states ‘So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.’
‘Adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice.
Attached as evidence is a photograph of the only sign visible from the bay in which the vehicle in question was parked. This is not ‘adequate notice’ as there is no legible mention on this sign that a PCN could be issued for overstaying, and the signage is too high and too small to be read and understood by someone either parked in the bay, or in a wheelchair closer to the sign in question. 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.
Therefore no reasonable adjustment has been made, and the elements of a contract have not been met. In ‘Excel Parking Services v Greenwood, case number 3QT60496 4/10/13’, the judge found in Mr Greenwood's favour on those 2 points; namely, there should have been a reasonable adjustment and the signs could not be seen from the car without requiring the disabled person to park and get out first.
It is submitted that the driver did not have a fair opportunity to read about any terms involving this charge. The dissimilar 'ParkingEye Ltd v Beavis' case cannot apply in this instance as a counterargument. In the Beavis case, which turned on specific facts relating only to the signs at that site, which were unusually clear and not a typical example for this industry and not reflective of my case. The Supreme Court were keen to point out the decision related to that car park and those facts only.
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. 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.

My 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 operator’s 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.''

The terms are displayed inadequately, in letters no more than approximately half an inch high. I put the operator to strict proof of compliance as to the size of the wording on their signs and the size of lettering of the parking charge itself.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers) 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 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. 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.

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, the area not being clearly marked/signed with prominent terms and the driver therefore not being deemed bound by them. This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case. The case found that the driver had not consented to - and could not have 'breached' - an unknown contract because there was no contract capable of being established.

I therefore submit that the foregoing applies to this case and put this operator to strict proof to the contrary.

INACCURATE ANPR
The photos provided as ‘evidence’ by Smart Parking when viewed as part of the initial appeal process, show no visible time stamp. They merely show the vehicle in question at two different angles, presumably entering and leaving a car park. We therefore contest their claims as to the accuracy of the times of entry and exit.
We require Smart Parking to provide evidence that their ANPR system is reliable. The operator is obliged to ensure that their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice. The operator must present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the same time source (The NAAS standard requires synchronisation every 10 minutes with a GPS time source [4, 2.1.1].), and with the timer which stamps the photos. 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, and the operator is expecting us to believe their system is entirely infallible.
The operator must explain 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 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. Without a synchronised time stamp there is no evidence that the image is ever time stamped accurately. Therefore I contend that the 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 the operator to strict proof to the contrary.

The ANPR cameras are not identified upon entry to the car park. Simple entry and exit photographs purported to be from the stated car park do not prove unquestionably that the vehicle actually entered and left it, parked within its boundaries, and remained parked within it for the alleged time.

According to Paragraph 21.1 of the BPA Code of Practice, ‘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’.

The small print on the signage does not clearly state what the ANPR cameras will be used for. This is not transparent. The ANPR symbol on the entrance sign is too small to be visible under normal driving conditions, and appears to presume the driver recognises the symbol and will understand what it has been placed there for, which is not reasonable. Additionally, while the camera equipment indicates entry and exit times, it does not demonstrate the parking period.

Nowhere at the entrance or on any other sign does it state that the permissible parking stay begins when the driver’s VRN is recorded at an arbitrary point prior to parking, a point at which the motorist is completely unaware.

There was consequently no lawful contract to breach and even if there was it was not breached, as the stay did not exceed that permitted, as explained above.

The fact that there are no signs telling drivers how the data captured by ANPR cameras will be used is a breach of the ICO registration of any AOS member and a breach of the BPA Code of Practice. As such, drivers are unaware that the timing is being started before they park and after they leave the parking space, which is unfair under the Consumer Rights Act 2015 and a misleading business practice under the Consumer Protection from Unfair Trading Regulations 2008.

Despite the arguments of the operator in its rejection of our appeal, we find that the signage breaches the BPA Code of Practice and therefore this appeal should be allowed.

NO EVIDENCE OF LANDOWNER AUTHORITY
As Smart Parking 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 and basic information such as the land boundary and bays where enforcement applies/does not apply, 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
I believe there is no contract with the landowner that entitles Smart Parking Ltd to levy these charges and therefore it has no authority to issue PCNs. This being the case, the burden of proof shifts to Smart Parking Ltd to prove otherwise so I require that Smart Parking Ltd produce a copy of their contract with the owner 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 Smart Parking and the owner, containing nothing that Smart Parking can lawfully use in their own name as a mere agent, that could impact on a third party customer.

While I appreciate that unlike the Equality Act, the BPA Code of Practice is not statutory legislation, the operator assures us in its rebuttal that its signs are BPA compliant (which I dispute). It must therefore be concluded that it abides by the Code of Practice in all things and cannot pick and choose which points it will comply with.
As a last point, in its rebuttal of my appeal, the operator completely ignores the fact of my disability. This in and of itself is inherently disrespectful, all the more so because on receiving my data from the DVLA they will have been informed that the vehicle in question is a Motability car.
This entire incident has caused me inordinate amounts of distress, stress and upset.
In light of the foregoing, I respectfully request that this appeal be upheld and PCN Number ####### be withdrawn.