Ridiculous Sting. Another unscrupulous Parking Company.

KeithP

You need to make that Dropbox file public. It currently asks me to signin to see it.

DorianWolf

KeithP wrote: »

You need to make that Dropbox file public. It currently asks me to signin to see it.

hxxps://www.dropbox.com/s/drl9814y6jecgiq/APPEAK_Page_1.jpg?dl=0

KeithP

https://www.dropbox.com/s/drl9814y6jecgiq/APPEAK_Page_1.jpg?dl=0

As you've said, it's just a template appeal refusal.

If you haven't done so already, start work on your PoPLA appeal.

DorianWolf

KeithP wrote: »

https://www.dropbox.com/s/drl9814y6jecgiq/APPEAK_Page_1.jpg?dl=0

As you've said, it's just a template appeal refusal.

If you haven't done so already, start work on your PoPLA appeal.

Thanks Keith, I will. Missed page 2, sorry.

hxxps://www.dropbox.com/s/jzqixqw1h6b1zxt/APPEAK_Page_2.jpg?dl=0

KeithP

https://www.dropbox.com/s/jzqixqw1h6b1zxt/APPEAK_Page_2.jpg?dl=0

Yes, nothing worth noting there either.

DorianWolf

Should my POPLA appeal, once posted here for verification, contain the specifics of the case, ie. dates and exact parking times?

KeithP wrote: »

https://www.dropbox.com/s/drl9814y6jecgiq/APPEAK_Page_1.jpg?dl=0


If you haven't done so already, start work on your PoPLA appeal.

Coupon-mad

No need for details like dates/times as the PPC has them and POPLA will see the evidence.

DorianWolf

I have been reading the forum and gathering as much information as possible from the Newbies thread and the POPLA appeals process whilst going back and forth with Minster Baywatch over the last couple of months.

They have sent me a POPLA verification code and I would appreciate your advice on my first draft appeal to them, below.

Earlier I was seriously wavering, being anxious that my appeal will fail, due to lack of points or validity of some of my points, especially "The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for."

Any advice on these points, my appeal, points I may have accidentally omitted, or what further wording that I may use in my appeal would also be appreciated?

Thank you all for your time.




POPLA Verification Code: XXXXXXX
Vehicle Registration: XXXXXXX

I, the registered keeper of this vehicle, received a letter dated XXXXXXXX acting as a notice
to the registered keeper. My appeal to the Operator, Minster Baywatch, was submitted and
acknowledged by the Operator on XXXXXXXX and rejected via an email dated XXXXXXX.
I contend that I, as the keeper, am not liable for the alleged parking charge and wish to
appeal against it on the following grounds:

1. Grace Period: BPA Code of Practice – non compliance

2. The entrance signs are inadequately positioned and 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 charges at the
entrance

3. The operator has not shown that the individual who it is pursuing is in
fact the driver who is liable for the charge

4. No Evidence of Landowner Authority – the operator is put to strict
proof of compliance with the BPA Code of Practice

5. No Evidence of Period Parked – Ntk does not meet PoFA 2012
requirements

6. Vehicle Images contained in PCN: BPA Code of Practice – non
compliance

7. The ANPR System is Neither reliable not Accurate

8. The Signs Fail to Transparently Warm Drivers of what the ANPR Data
will be used for

9. No Advertising Consent for signage from Planning Enforcement, City of
York Council

Grace Period: BPA Code of Practice – non-compliance

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a
minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:“Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA’s Code of Practice (13.2) states that: “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.”

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. (it should be made clear - a contract was never entered in to), it is
reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a
“reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

BPA’s Code of Practice (13.4) 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.”

BPA’s Code of Practice (18.5) states that: “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

Upon receiving the Parking Charge, the document described the vehicle as merely entering the car park at XXXXXXXX and merely leaving at XXXXXXXX.

The BPA sets a minimum of 10 minutes just to leave, not a maximum grace period.

Director of Policy and Public Affairs, Kelvin Reynolds at the British Parking Association (BPA):
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

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

Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

Then, some 4 years ago, on 30th July 2015. The minutes of the Professional Development &
Standards Board meeting show that it was formally agreed by the Board (of BPA members and
stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads:

“Reword Clause 13.4 to ‘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 11 minutes.”

(Source:http://www.britishparking.co.uk/write/Documents/Meeting Notes/Governan
ce/20150730_PDandS_Board_Action_Notes.pdf)

Whilst 13.4 does not apply in this case (as a contract was never entered in to), it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.

If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions, decide not to enter into a contract and then “not remain” and leave the car park.

To briefly summarise this definition, an observational period must include sufficient time for a
motorist to park, observe the signs, make a decision as to whether they wish to comply with the
conditions and park, or leave.

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

It is very clear from the evidence that Minster Baywatch have failed to uphold these minimum
grace periods set out in the BPA Code of Practice, as the time spent at the Car park was just XX minutes, which could not be defined as “remaining”, especially considering the following must also need to be achieved (finding a bay to stop at, check the vehicle was parked correctly, secured correctly and then to find the pay machine, read the instructions, locate & read any available signage; which I also believe to be unclear as there is on site a combination of inadequately positioned notices with illegible small print) and then make a decision (to return to the car, observe and carry out safety checks on the vehicle, navigate around, make way for other vehicles and safely exit the car park).

By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable and are well within the minimum of both grace periods added together.

Again, it is undeniably clear from the evidence that Minster Baywatch have failed to uphold and
consider the necessary grace periods set out in the BPA Code of Practice, as the total time within the car park does not, or would never allow for the driver to make the necessary observations, as highlighted by Kelvin Reynolds above, nor allow the necessary grace period for leaving the car park.

It is therefore argued that the duration of visit in question (which Minster Baywatch’ s claim was XX minutes XX seconds) is not an unreasonable grace period, given:

• The location, and lack of sufficient signage relevant to the points raised throughout the car park
in question (non-compliance with BPA Code of Practice 18.3) and the impact of that upon time
taken to locate signage prior to entering into a contract.

• The lengthiness and elevation of Minster Baywatch’s signage (in terms of word count) with a
significant amount of text included in small print, in barely legible font.

These factors serve merely to increase the time taken to, locate a sign containing the full terms and conditions, and -

Read the full terms and conditions.

• Decipher the confusing information being presented
• Decide not to park and therefore enter into a contract.
• Return to the vehicle and safely leave the car park.

These points in this case demonstrate significant unreasonableness on the part of this notorious
parking operator.

[U]The entrance signs are inadequately positioned at 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 at the entrance.[/U]

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, disproportionate charge 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 thatcar park and those facts only: http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour
background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Figure 1 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:
https://www.dropbox.com/s/9qzx74xechcg52c/1.jpg?dl=0
B]Figure 1[/B]: Beavis sign

This case, by comparison, does not demonstrate an example of the 'prominent signage' or ‘large
lettering’ 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 and sparsely placed, or not in existence at all, as at the entrance to one section of the car park, which is not controlled by any ANPR either, evidenced later in Figure 5.

The signs are therefore unremarkable and not immediately obvious.

https://www.dropbox.com/s/6acddmjic816dtp/2.jpg?dl=0
Figure 2: Blossom Street - Main car park sign

The image in Figure 2 above shows the main car park sign. (N.B. This image was taken coming from the direction of where the vehicle was allegedly parked, payment machine can be seen obscuring the view from this left side.

https://www.dropbox.com/s/xa1gejrefvn2jts/3.jpg?dl=0
Figure 3: Blossom Street - Main car park sign

It is therefore suggested that Figures 2 and 3 serve to reinforce the point made regarding noncompliance with the BPA Code of Practice (18.3), specifically:

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

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, the Entrance sign to the Blossom Street car park does not clearly mention the parking charge, which is hidden in small print. Areas of this site are unsigned as in Figure 5 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.

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, which I will discuss in more detail later.

This case is more similar to the signage in POPLA decision 5960956830 on 02/06/16, 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.''

The sections in light coloured text at the bottom of the sign (see Figure 3) that are apparently
important are in small font that is hard to read fully, particularly within such a short amount of time as expected. It purports to be not ignored – the wording used gives the impression to the reader to examine in detail and fully understand. Why is something so important so small and illegible?

Furthermore, light coloured text on a dark background is difficult to read.

Indeed, in relation to design principles, it is widely known that colour contrast plays a key role in
terms of accessibility as it “affects some people’s ability to perceive information (in other words to be able to receive the information visually).” (Government Digital Service, 17 June 2016).
Whilst thisweb page discusses design principles in relation to web design, the same points are true of printbased materials which would include signage.

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. The letters seem to be in small font size going by this guide:

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

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:
http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-
Distance-/10000000175068392/g.html

I put Minster Baywatch 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.

https://www.dropbox.com/s/4t3ya3ia57j6udk/4.jpg?dl=0
Figure 4: Blossom Street - Main car park entrance sign/Angle of entrance sign in relation to
approaching traffic

Figure 2 shows the entrance to the main Blossom Street car park, giving some context to the location
and specifically the angle of the sign, at which it would be approached in a vehicle from a 30mph
road.

The BPA Code of Practice (Appendix sets the requirements for signs.
“Entrance signs play an important part in establishing a parking contract”
The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.

The sign is angled so as to look directly out from the car park, pointing at 90 degrees from any
approaching traffic, as shown in Figure 2 above.

It shows clear evidence that the angle of the ‘entrance sign’ plays an important part in how a
motorist could have missed a sign at the entrance and in the car park if they took this route, which has to be taken as the street is a dead end. The sign, facing the road would not be seen by a driver, as they would be looking forwards, not sideways.

This relevant entrance sign in this appeal case is not “readable by drivers without their needing to look away from the road ahead” (it’s not even visible) as evident in figure 2, it is certainly not readable and understandable at all times. Not to mention that safety driving into this space should be paramount, due to oncoming vehicles and parking bays, with parked vehicles on the left, further compounding the problem of the entrance sign being visible, or easily missed and therefore read.

Would it not be sensible to angle all entrance signage towards oncoming traffic?

Figures 2, and later 3 and 4 clearly show that Minster Baywatch’s signage does not comply with the BPA Code of Practice (18.3), specifically:

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

It is important at this point to reiterate that vehicles approaching/entering the car park do so from a 30mph street, as indicated in Figure 2. When discussing entrance signs, the BPA CoP (Appendix suggests a typical approach speed of 15mph to enter a car park by immediately turning off a 30mph road.

Performing some simple calculations seeks only to reinforce the point that the entrance sign is noncompliant. Take the length of the vehicle identified on the NtK, a XXXXXXXXXXXXXXXXXXX and the BPA’s suggested approach speed of 15mph. With an entrance sign positioned approximately one metre from the approach road as is the case here, travelling at 15mph the vehicle would be past the entrance sign in less than a second.

Taking figure 2 into account based on the angle of the entrance sign in relation to the approach road as illustrated, it is clear that the entrance sign to the Blossom Street car park is wholly inadequate.

Minster Baywatch’s main car park sign on the Blossom Street site is also insufficient for purpose and illegible in a number of ways, not least because of the quantity of text that must be read (see
Figures 3 and 4).

The entrance sign to the right of the entrance (from the perspective of a vehicle entering the car
park) contains a substantial amount of text. This text is very small – impossible to read whilst in a
moving vehicle – not to mention difficult to read in daylight whilst on foot.

The entrance sign is the sign that states the car park is Pay & Display and refers to terms and
conditions. As previously discussed, the issue here with this entrance sign specifically is it’s
positioning. This is key in establishing non-compliance with the BPA CoP (Appendix ; the direction the sign faces in relation to approaching traffic.

Upon further research it is apparent that the initial entrance signs in the car park are poorly located (wrong angle on approach to be visable), particularly from a moving vehicle entering the car park from a 30MPH road), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.

https://www.dropbox.com/s/3dkrbnzze14c6yo/5.jpg?dl=0
Figure 5: Blossom Street Car Park misleading lack of signage.

“Signs should be readable and understandable at all times”
The photograph in figure 5 is further evidence of misleading signage in the fact that an additional
area of the Blossom Street car park has no entrance signage whatsoever, and is neither separated from the road, nor controlled by ANPR.

https://www.dropbox.com/s/00eesih5lvkjed0/6.jpg?dl=0
Figure 6: Blossom Street - Specific parking-terms signage

Height of relevant parking-terms sign is disproportionately elevated, ensuring that important
information cannot be easily seen, or read and understood, in order to form a contract. This is a
further reason for the short delay in leaving the area, although well within the minimum of both
grace periods added together.

It should be emphasised that the text is small & difficult to locate and read, therefore extending
the amount of time taken to understand an offer, and consider it and choose not to accept, therefore no contract was entered into.

This indicates non-compliance with the BPA Code of Practice (18.3) which states: “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

In (September 2017) a POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.

It cannot be reasonably assumed that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.

.......continued

DorianWolf

.........(part 2)

https://www.dropbox.com/s/l9xtmxz9ovvgsxt/7.jpg?dl=0
Figure 7: Blossom Street - Specific parking-terms signage

Both images in Figure 6 and Figure 7 were taken in the similar lighting conditions as per the
occasion for which the PCN has been issued. Both images clearly demonstrate the
adversity, due to reflected light, in reading a sign by the naked eye, or being “given the
chance to read them at the time of parking”

''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 elevated on a wall 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, 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 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' -
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':

A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is
transparent. A consumer notice is transparent for the purposes of subsection (1) if it is expressed in
plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive
case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not
seeing the terms and, consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the
operator's case:

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

This was a victory for the motorist and found that, where terms on a sign are not seen and the area
is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot
have 'breached' - an unknown contract because there is no contract capable of being established.
The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The
recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area
was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and
could not have been seen and read from a driver's seat before parking.

https://www.dropbox.com/s/69yyri6a1nf8v40/8.jpg?dl=0
Figure 8: Lack of visible signage from where the car was situated

Figure 7 was taken in the same conditions as per the occasion for which the PCN has been
issued. This provides clear evidence as to the lack of legible, or even visible signage from
where the vehicle was situated.

In addition, the BPA Code of Practice (18.1) clearly states that:

“A driver who uses your private car park with your permission does so under a licence or contract with
you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which
the driver should be made aware of from the start.”

Bearing this paragraph in mind, there was categorically no contract established between the driver
and Minster Baywatch. To draw on the basic guidelines of contract law for a contract to be effective
the offer must be communicated.

When the driver arrived at the car park it was impossible to a read safely, let alone understand the
terms and conditions being imposed.

Therefore, there can be no acceptance of an agreement if the other person is without knowledge of
the offer.

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), in the same
lighting conditions. 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.

[U]The operator has not shown that the individual who it is pursuing is in fact
the driver who was liable for the charge.[/U]

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 keeper
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.''


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

I believe that there is no contract between the driver and the operator. I use this platform to argue
that the notice does not state anything about a contract with Bransby Wilson Parking Solutions,
though they are shown as site managing agent of the car park. I must bring to your attention that it
is neither obvious, nor clear which company operates this site. So it is unclear which company the
driver allegedly entered into a contract with, because of the confused signage and terms, as both
entities have displayed that they manage the site

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).

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

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

Paragraph 7 of the BPA Code of Practice 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.

No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that
the vehicle was parked versus attempting to read the terms and conditions before deciding against
parking/entering into a contract.

Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of
parking”. Most notably, paragraph 9(2)(a) requires the NtK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the
notice relates;”

Minster Baywatch’s NtK simply claims the vehicle was involved in breaching the stated terms and
conditions of use” at Blossom Street.

The NtK separately states that the vehicle “Entrance Date/Time: XXXXXXXXX at XXXXXXXX” and
departed at ”Exit Date/Time: XXXXXXXX at XXXXXX”. At no stage do Minster Baywatch explicitly
specify the “period of parking to which the notice relates”, as required by PoFA 2012.

It is not in the gift of Minster Baywatch to substitute “entrance/exit” or length of visit in place of the
POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Minster Baywatch are
not able to definitively state the period of parking.

I require Minster Baywatch to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

The BPA Code of Practice point 20.5a stipulates that:

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

The PCN in question contains two close-up images of the vehicle number plate. Neither of these
images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle
entering or leaving this car park (which is also not identifiable in the photos as of any particular
location at all).

The time and date stamp has been inserted into the letter underneath (but not part of) the images.
The images have also been cropped to only display the number plate. As these are not the original
images, I require Minster Baywatch to produce evidence of the original "un-cropped" images
containing the required date and time stamp and to evidence where the photographs show the car
to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

The ANPR System is Neither Reliable nor Accurate

The Minster Baywatch Notice to Keeper (NTK) shows no parking time, merely two images of a
number plate corresponding to that of the vehicle in question.
There is no connection demonstrated with the car park in question.

The Notice to Keeper states: Parking Fee covering visit duration was not paid in full
“Entrance Date/Time: XXXXXXXXX at XXXXXXXXX” and departed at ”Exit Date/Time: XXXXXXXXX at XXXXXXXXXX”.

These times do not equate to any single evidenced period of parking. These times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this
cannot reasonably be assumed.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012,
paragraph 9(2)(a), which states;

“Specify the vehicle, the relevant land on which it was parked and the
period of parking to which the notice relates.”

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure
ANPR equipment is maintained and is in correct working order.

I require Minster Baywatch to provide records with the location of the cameras used in this instance,
together with dates and times of when the equipment was checked, calibrated, maintained and
synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR
images.

As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the
terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of
significant importance in this case (it is strongly suggested the time periods in question are de
minimis from a legal perspective), and the parking charge is founded entirely on two images of the
vehicle number plate allegedly entering and leaving the car park at specific times (XX minutes and XX seconds apart), it is vital that Minster Baywatch produces the evidence requested in the previous paragraph.

The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be
used for.

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

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

Minster Baywatch’s signs do not comply with these requirements because these car park signage
failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its
commercial intent', contrary to the BPA CoP and Consumer law.

The Minster Baywatch’s sign in the Blossom Street car park (see Figure 7) states:

“Minster Baywatch Ltd collects and processes certain data to ensure that you complying with
the terms and conditions of the parking contract.”

Missing is the vital information that these camera images would be used in order to issue Parking
Charge Notices. There is no suggestion in the sentence above that the cameras are in any way
related to Parking Charge Notices.

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

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

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

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

and Paragraph 69:
Contract terms that may have different meanings:

If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning
that is most favourable to the consumer is to prevail.

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

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

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

the commercial practice omits material information,
the commercial practice hides material information,

the commercial practice provides material information in a manner which is unclear, unintelligible,
ambiguous or untimely, or the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average
consumer to take a transactional decision he would not have taken otherwise.''

No Advertising consent for signage

Mr Andy Blain, Planning Enforcement at City of York Council, stated in an email dated 15th January
2018

“A majority of advert consents only get 5 years consent then they have to be renewed. The advert
consent (08/02615/ADV) ran out in 2014”

Anyone who displays an advertisement, or uses an advertisement site, or knowingly permits
someone else to do so, without the consent required for it is acting illegally.

The display will be unauthorised until consent is granted it will amount to a criminal offence.
This clearly proves Minster are/have been seeking to enforce Terms & Conditions displayed on
signage, for which no new consent has been granted.

I request Minster Baywatch provide evidence that Advertising Consent has been gained for signage
exceeding 0.3 m2, prior to the date to which this appeal relates (17/12/2018).

END

DorianWolf

Redacted PDF of full POPLA appeal.

Any advice on these points, my appeal, points I may have accidentally omitted, or what further wording that I may use in my appeal would also be appreciated?

Thank you all.

https://www.dropbox.com/s/uy4szie2nori76v/REDACTED%20POPLA%20APPEAL%20V1.3.pdf?dl=0