Comments on draft POPLA appeal please - Failure to pay for duration of stay

crossone

I now need to provide comments on the PPC's evidence pack.

Inevitably a load of photos which I will comment on.

The ANPR agreement provided is quite heavily redacted, but is signed and in date. It's with a company that has "management" in the name so I'm guessing a management company rather than the landowner but does this matter? I know 7.2 of the BPA code refers to authority from the landowner or appointed agent. The definition of the land is just an address. It does expressly state that the operator must comply with the BPA's AOS Code and that they have authority to pursue charges.

Thoughts gratefully received

crossone

Also the PPC have described the PCN as "charges for breach of contract" in their submissions - I thought the point was that the PCN was a term of the alleged contract rather than a penalty for breach?

Any thoughts or relevant recent examples on this point very much appreciated

crossone

Draft comments - any thoughts please?


I respond to the points in the operator’s parking pack as follows:

1. Failure to establish keeper liability

The operator has provided no response and in fact can have no answer to the fact that the purported PCN does not meet the requirements of paragraph 9, schedule 4 of the Protection of Freedoms Act 2012 (POFA), specifically paragraph 9(f) POFA which requires the operator to “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given…”

The provisions of POFA are not guidelines for operators to paraphrase as they see fit, but specific requirements as to the necessary wording, as laid down by Act of Parliament.

The burden of proof lies with the operator to demonstrate that it has issued the PCN correctly. Paragraph 21.5 of the BPA Code of Practice reminds operators that:

“If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must comply with the strict requirements and timetable set out in the Schedule (in particular paragraph 9)” (my emphasis)

The wording in this purported PCN exactly replicates that found not to meet the requirements of POFA in a recent POPLA appeal involving this operator (4160317097).

This is a case where the driver has not been identified and I cannot be held liable for this charge.

2. Landowner authority

The ANPR Service Management Agreement provided has been heavily redacted so that the full terms of the contract are not visible, either to me as the appellant or to POPLA. A full, unredacted version of the contract must be provided so that the hidden terms can be considered. In the absence of a full, unredacted version of the agreement, POPLA cannot be satisfied that all the terms of the agreement have been satisfied and that the operator has landowner authority.

The agreement appears not to have been signed by the landowner, but rather a managing agent of the site. No evidence has been submitted to confirm that this managing agent has the authority to act on the behalf of the landowner, especially with regards to entering into long-term contracts with 3rd party companies.

The agreement does not contain an adequate description of the land so that the boundaries of the land can be clearly defined as required by paragraph 7.3(a) of the BPA Code of Practice. The “Location” is defined as “the locations detailed in Part II of the Schedule”. In fact the agreement has no Part II. To the extent that an address has been added in manuscript at the end of the document, this is illegible and does not adequately describe the boundaries of the land. As such, no proper authority is conferred by this agreement.

Moreover, under clause 3.1.5 of the agreement, the operator is required to maintain sufficient signage to adequately advise drivers of the conditions of parking. For the reasons set out below, this requirement has not been met.

The operator is therefore not authorised under the terms of the agreement to issue or pursue parking charges as it has purported to do.

3. Signage

The operator has not provided a site map as set out in its comments, but rather multiple copies of the same photographs showing signage in undefined locations. The operator has provided no evidence to demonstrate that this vehicle was parked close to a sign or that the driver would have seen the signage when using the car park.

It is notable that the purported parking charge cannot be seen in any of the photographs provided by the operator (despite these being taken in perfect, summertime conditions) and is indeed barely visible in even the computer-generated images of the signage.

It is also notable that the operator feels the need to highlight the location of the purported notice of parking charge on its signage by use of red boxes and circles in its evidence, demonstrating that the charge is far from clear or transparent. I refer again to the use of tiny font (smaller than other text, for example that used to refer to the all-day charge of just £4) as well as the use of illegible yellow text against a white background.

The fact that the signage includes a small camera logo does not comply with paragraph 21.1 of the BPA Code of Practice which provides as a mandatory requirement that “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.”(my emphasis). The operator has conceded that this requirement has not been satisfied.

4. No facility to make a cash payment

The operator does not dispute that it provides no facility to make a cash payment at the location and provides no answer to the fact that any contract in existence (which is denied) is thereby frustrated in circumstances where a driver’s mobile phone becomes unavailable (because it is lost, stolen or the battery dies) within the initial 3-hour period.

I respectfully request POPLA to uphold my appeal

Coupon-mad

Far too long. IMHO, final comments will not be read unless they fit in the Portal (bullet points).

crossone

thanks - I will cut down. If you think the content is good I'll get this sent off and keep fingers crossed. Thanks for all your help

crossone

better? If still too long, please let me know which bit you would ditch!


1. Failure to establish keeper liability - The operator has no answer to the fact that the PCN does not meet the requirements of paragraph 9(f), schedule 4 of the Protection of Freedoms Act 2012 (POFA), which requires it to “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given…” The provisions of POFA are not guidelines for operators to paraphrase, but specific requirements as to the necessary wording, as laid down by Act of Parliament.

The wording in this purported PCN exactly replicates that found not to meet the requirements of POFA in a recent POPLA appeal involving this operator (4160317097). This is a case where the driver has not been identified and I cannot be held liable for this charge.

2. Landowner authority - The Agreement provided has been heavily redacted so that the full terms of the contract are not visible. A full, unredacted version of the contract must be provided so that the hidden terms can be considered. Without a full version of the agreement, POPLA cannot be satisfied that all the terms of the agreement have been satisfied and that the operator has landowner authority. The agreement appears not to have been signed by the landowner, but rather a managing agent. No evidence has been submitted to confirm that this managing agent has authority to act on the behalf of the landowner. The agreement does not contain an adequate description of the land so that the boundaries of the land can be clearly defined as required by paragraph 7.3(a) of the BPA Code of Practice. The “Location” is defined as “the locations detailed in Part II of the Schedule”. In fact the schedule has no Part II. The address in manuscript at the end of the document is illegible and does not adequately describe the boundaries of the land. Moreover, under clause 3.1.5 of the agreement, the operator is required to maintain sufficient signage to adequately advise drivers of the conditions of parking. As set out below, this requirement has not been met. The operator is therefore not authorised under the terms of the agreement to issue or pursue parking charges.

3. Signage - The operator has not provided a site map as per its comments, but rather multiple copies of the same photographs showing signage in unspecified locations.
The operator has provided no evidence to demonstrate that this vehicle was parked close to a sign or that the driver would have seen the signage. The purported parking charge cannot be seen in any of the photographs provided by the operator (despite these being taken in perfect, summertime conditions) and is barely visible in even the computer-generated images of the signage. It is also notable that the operator feels the need to highlight the location of the purported notice of parking charge on its signage by use of red boxes and circles in its evidence, demonstrating that the charge is far from clear or transparent.

The fact that the signage includes a small camera logo does not comply with paragraph 21.1 of the BPA Code of Practice which provides as a mandatory requirement that “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 operator has conceded that this requirement has not been satisfied.

Coupon-mad

You won't fit that in the Portal for comments.

I would lose the flowery, unnecessary words like:

The provisions of POFA are not guidelines for operators to paraphrase, but specific requirements as to the necessary wording, as laid down by Act of Parliament.

As set out below, this requirement has not been met. The operator is therefore not authorised under the terms of the agreement to issue or pursue parking charges.

crossone

good point - I thought I had 2000 words but see now its 2000 characters...

crossone

OK so now here's a version under 2000 characters.

No possibility to attach a pdf to include longer comments as some previous posts had suggested. Thanks for all your help coupon-mad

The PCN wording exactly replicates that found not to meet the requirements of POFA in a recent POPLA appeal (4160317097). The driver has not been identified and I cannot be held liable for this charge.

An unredacted ANPR agreement must be provided so that the hidden terms can be considered. Without this, POPLA cannot be satisfied that all the terms are met and that the operator has landowner authority. The agreement appears to have been signed not by the landowner, but a managing agent. No evidence has been submitted to show that the managing agent has authority from the landowner. The agreement does not contain an adequate description of the land so that the boundaries of the land can be clearly defined as required by 7.3(a) BPA Code of Practice. The “Location” is defined as “the locations detailed in Part II of the Schedule”, but the schedule has no Part II. The manuscript address at the end of the document is illegible and does not describe the boundaries of the land. Under 3.1.5 of the agreement, the operator is required to maintain sufficient signage to adequately advise drivers of the conditions of parking. As this requirement has not been met the operator is not authorised.

The operator has not provided a site map but multiple copies of the same photographs of signage in unspecified locations. There is no evidence that this vehicle was parked close to a sign or that the driver would have seen the signage. The parking charge cannot be seen in any of the photographs provided by the operator (taken in perfect, summertime conditions) and is barely visible in even the computer-generated images of the signage. Note the operator feels the need to highlight the parking charge with red boxes and circles in its evidence - the charge is not transparent.

A small camera logo does not comply with 21.1 BPA Code of Practice - “Signs… must tell drivers …what you will use the data captured by ANPR cameras for.” The operator has conceded that this has not been satisfied.

Coupon-mad

Much more focussed!