late notice postal PCN - POFA 2012?

hammer77_2

Hello,

Great resources here, I just read and re-read through the Newbie thread but unfortunately still have a couple of doubts before the keeper sends in the first appeal.

The keeper got a notice from McDonalds gatwick for failure to validate stay in car park, although the driver was a paying customer. The driver has a bank statement entry for the McDonalds meal but doesnt have the actual receipt. The date of alleged contravention was 1st August but the date of issue of notice wasnt until 31st August.

From the newbie thread:

If they are a firm which alleges 'keeper liability' under the POFA 2012 (which they don't have to!) the a postal PCN must arrive by day 14 if there was no windscreen ticket.

Or, the NTK must arrive with you between day 29 and day 57 if there was a windscreen PCN.

Some firms (e.g. Civil Enforcement, Highview, Smart Parking and some small PPCs) don't even bother with POFA 2012 wording so the keeper is not liable if you point that out to POPLA.

I understand therefore that the keeper's notice letter in this instance has been issued too late (over 14 days for a postal PCN) if they mention POFA 2012, and the keeper is not liable if they dont mention POFA 2012 but.... how can you tell whether they allege 'keeper liability' under POFA 2012 or not on the notice letter? Do you need to look for specific wording like "POFA 2012" or something? It only mentions they received the registered keeper details in accordance with the Road Vehicles Regulations 2002.

Do you still just send in a carbon copy of the appeal letter from the newbie thread or should it be adjusted to include something about the late notice?

If the keeper should amend the appeal letter, is there any template they can *ahem* borrow from, with regards to appealing the late notice point?

Should the keeper include the driver's McDonalds receipt in the appeal letter in the hope that they cancel it at this stage? I assume it would be best to blank out the driver's name and details from bank statement?

Sorry to bother you with this but I didn't want to mess up at the first stage and have it impact the whole process especially when it seems the late notice could be a slam dunk victory if done right.

Thanks!

KeithP

Just send the blue text appeal you have already found in the first post in the NEWBIES FAQ sticky thread.

Send it unchanged - no additions or alterations necessary.

Send it as the keeper.

Redx

I presume that MET issued it ? (that place comes up every week on here)

do as mentioned above, keep the arguments and proof for popla, for later in the process

Coupon-mad

Which Parking firm, MET?

They often issue non POFA PCNs (they have both versions).

how can you tell whether they allege 'keeper liability' under POFA 2012 or not on the notice letter? Do you need to look for specific wording like "POFA 2012" or something?

It's mainly about certain wording, especially the warning in 9(2)f, as here:

https://forums.moneysavingexpert.com/discussion/comment/74797510#Comment_74797510

You DO NOT need to add words to the first appeal template, so don't bother.

hammer77_2

OK, I will just send the boiler plate template now and save the rest for the POPLA appeal.

Yes, MET. parking services. the driver in my case had the same as a few others I saw here on the forum at mcdonalds gatwick where it swallows the ticket and then when you push the button next to the speaker to speak to someone (as happens at all of the machines I have ever personally used in my life) the barrier raises for you to leave but by pushing the button the person has apparently consented to leave without validating their ticket. Very very sneaky! If it was clear what they were attempting to do the driver would no doubt re-enter the restaurant to get their ticket validated, thus depriving the MET of a potential victim.


Thanks for the help everyone, much appreciated!

Coupon-mad

the driver in my case had the same as a few others I saw here on the forum at mcdonalds gatwick where it swallows the ticket and then when you push the button next to the speaker to speak to someone (as happens at all of the machines I have ever personally used in my life) the barrier raises for you to leave...

...but by pushing the button the person has apparently consented to leave without validating their ticket. Very very sneaky! If it was clear what they were attempting to do the driver would no doubt re-enter the restaurant to get their ticket validated, thus depriving the MET of a potential victim.

Hmmm...I winder if the ICO would be interested in that scam, which is connected to an ANPR system which causes an imbalance 'contrary to the requirement of good faith' as set out in the Consumer Rights Act 2015.

Put in a complaint NOW to the ICO that this ANPR system, when coupled with this complicated, sneaky button that just lifts the barrier after swallowing the ticket (giving unsuspecting people no fair reminder that they had to 'verify' the ticket in McDonalds, which is not advertised), misuses the VRN data, is excessive and unjustified.

And allege that the PPC has breached the ICO Surveillance Camera code of practice and is operating with 'automated decisions' and no human checks, and you are concerned that your personal data has been misused to create a PCN automatically:

https://ico.org.uk/make-a-complaint/your-personal-information-concerns/

HTH, do that now, with evidence if you have it.

hammer77_2

Thanks for the advice!

I had a look but I cant make a complaint on the ICO website unless I have first contacted the company about my concerns and waited a month for them to reply. I will wait until after the POPLA appeal as I havent yet said anything about it to the MET as I just sent the boiler plate template on this 1st appeal.

hammer77_2

Hello again,

I have now received the appeal rejection from MET Parking as expected.

I went through and borrowed heavily (i.e copy/pasted :shhh:) with some minor modifications the POPLA appeal letters from these 2 threads, which were from the same company and the same car park:

h ttps://forums.moneysavingexpert.com/showthread.php?t=5869939
h ttps://forums.moneysavingexpert.com/showthread.php?p=74760528 (can download word doc that contains the missing links and images)

Even though from what i understand it appears that just being non-POFA 2012 (the keeper cannot be held liable nor has to disclose who the driver was) is grounds enough to successfully appeal I am not feeling brave enough, nor lucky enough, to appeal on the 1 point so also included the other points.

I would appreciate it if someone more knowledable than I would give it a quick scan to check I havent made any mistakes or omissions before I send it off to POPLA and cross my fingers.

Thanks a lot!

---

POPLA Ref: ____________
MET Parking Services PCN no: ___________

A notice to keeper was issued on xx Aug 2018 and received by me, the registered keeper of xxxx xxx for the alleged contravention: failure to validate stay in the car park' at McDonald's, Gatwick. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.


1) MET has deliberately chosen not to use POFA, they failed to comply with POFA 2012 act by not keeping to time scale when issuing NTK - therefore they cannot hold the keeper liable.

2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

3) Misleading system and signage at fault

4) 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

5) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.


1) MET has deliberately chosen not to use POFA and make no mention of such or the transfer of liability to the keeper under POFA 2012 in the Notice to Keeper I have received.

Date of alleged contravention was xx August 2018. A notice to keeper was issued on xx Aug 2018 and received by me (registered keeper) on xx Sept 2018. That makes it 34 days since the day of contravention until I (the registered keeper) have received the NTK.

Under Protection of Freedoms Act 2012 Schedule 4

(4)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.
(5)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.

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

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. 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 which they have not in this case. This applies regardless of when the first appeal was made because the fact remains I am only 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, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 which in this case the operator is not.

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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

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 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).
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) Misleading system and signage at fault

Nowhere on the exit ticket machine does it state that pushing the button will raise the barrier. Their sign says "use their validated ticket to raise the exit barrier" that instruction suggests to me the barrier won't lift without the presentation of a validated ticket, so their system and signage is at fault.

4) 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

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.
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:

link

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:

link

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. 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.

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). 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.

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 .40 font size going by this guide:

link

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

link

''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:

link

''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 just 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:

link

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 mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5) Failure to comply with the data protection 'ICO CCTV Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

BPA’s Code of Practice (21.4) states that:
“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.

BPA’s Code of Practice (36.1a) states that:
“You may send an NTO to the registered keeper…”
“You must tell them about the complaints procedure they can use to tell the Information Commissioner and the DVLA if they believe their data has been used inappropriately.”

The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at [link]

The ICO’s CCTV Code of Practice makes the following assertions:

“This code also covers the use of camera related surveillance equipment including:
- Automatic Number Plate Recognition (ANPR);”

“the private sector is required to follow this code to meet its legal obligations under the DPA. Any organisation using cameras to process personal data should follow the recommendations of this code.”

“If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”

“You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on individuals”

“You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper assessment.”

“If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.”

“Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimise these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.”
“Note:
... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.”

“A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a lawful basis and is justified, necessary and proportionate.”

The quotations above taken directly from the ICO’s CCTV Code of Practice state that if MET Parking Services wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that MET Parking Services must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require MET Parking Services to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has “a lawful basis and is justified, necessary and proportionate”.

The ICO’s CCTV Code of Practice goes on to state:
“5.3 Staying in Control
Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:
- tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”

“7.6 Privacy Notices
It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear. One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.”

MET Parking Services have not stated on their signage a Privacy Notice explaining the keeper’s right to a Subject Access Request (SAR). This is in direct violation of the ICO’s CCTV Code of Practice – specifically with the extracts quoted above.

As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

Due to the aforementioned stated reasons I therefore request that POPLA uphold my appeal and cancel this PCN.

hammer77_2

POPLA appeal submitted. I will post POPLA decision when I get it.

hammer77_2

Good news!

POPLA sent me a email with the following:

MET Parking Services have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Thanks for the information and help everyone!

Le_Kirk

Well done!