Parking charge notice/fine - bought but wrong VRM

Starwalker

This is absolute ridiculous - the car park in question is used by the driver frequently, legally and correctly! - this is a one off where they got the vrm wrong or something along those lines i.e. did not input enough of it! Still they paid properly and displayed, and always have. This was not an opportunity to get out paying a couple of quid or 'scam' their system! What is the ****** point of displaying a ticket if nobody reads it! They had no idea that this new camera technology was being used. I just wish they had the ticket itself! I mean its absolute madness that you pay, display, stay the correct time and still get pursued like this.

KeithP

Sorry you didn't like my reply.

Good luck - ranting will get you nowhere.

Starwalker

Not at all Keith thanks for the advice. I just feel it makes no commercial sense for them as long term it encourages one to stop using their car park, and recommend it to others.

Do you feel it would have any persuasion to say something along these lines i.e. it has been used a lot and correctly but was a one off mistake with inputting the vrm and will now no longer be used so will not benefit them? It sounds soft I know but is the reality. Also, can I ask them to provide the VRMs inputted just after the time of arrival?

Thanks

KeithP

Starwalker wrote: »

Not at all Keith thanks for the advice. I just feel it makes no commercial sense for them as long term it encourages one to stop using their car park, and recommend it to others.

Do you feel it would have any persuasion to say something along these lines i.e. it has been used a lot and correctly but was a one off mistake with inputting the vrm and will now no longer be used so will not benefit them? It sounds soft I know but is the reality.

You are wasting your time with that line.

All they want is money. They don't care who they upset. There are plenty of people willing to pay £100 when asked.

As one regular poster on here often says "you're not dealing with John Lewis you know".

Starwalker

Right yes I thought as much.

I will explain however that it was known the driver paid and displayed correctly but has not retained the ticket and for some inexplicable reason has input the wrong vrm.

Should I state that payment would have been made very soon after entry and would be identifiable in their records i.e. with a similar vrm?

Starwalker

Is not retaining the ticket as proof the driver did pay going to come back to bite, although I have what is believed to be a golden ticket? I still want to mention the driver paid and that there must be a near identical record in their computer.

Coupon-mad

and for some inexplicable reason has input the wrong vrm.

That is the opposite of what KeithP suggested. I agree with KeithP.

Starwalker

Yes thanks I will amend to what KeithP meant.

Re signage please can you help as I feel not much to go on could be wrong. At least at the entrance the sign is too small and to the passenger side so can't be read before entering.

There are a number of signs around the car park on poles. The full Ts and Cs are in very small print however the parking charge warning can be seen in slight larger font on bold background. Observing these depends on where you park as they could be too high up or even behind your view so they are easy to miss.

Issue is there is a sign immediately on top of every pay and display machine - its about the right size to read so one could not miss it really and it was day time. Again it does have warning of the charge and is in slight larger font, but this time it is not in bold or any bold background. Again though the full Ts and Cs are far to small to read at the bottom.

So not much to go on however I think, and please correct me, I intend to argue (based on a recent decision on the threads) that the charge amount above the p and d machines is not in bold or on a bold background so does not stand out as much as it should do so along with full ts and cs being too small. What do you think?

Many thanks

Coupon-mad

You are overthinking this if you have a PCN with no POFA wording on the back.

You will win at POPLA on that alone, but to give you two safety nets, you should simply add the two POPLA template points I mentioned (they are pre-written in post #3 of the NEWBIES thread).

No need to think about it or write any words yourself/no need to edit them.

Starwalker

Hello again to all,

Here is my first draft appeal - I would be very grateful for your remarks and comments.

Many thanks

This appeal is further to the first appeal submitted to ......... (the “Operator”) on ....., which was rejected by email on ...... The first appeal was made further to receipt of a letter dated ...... received by me, the registered keeper, on ........referring to a parking charge for an alleged event that took place on ........... That notice to keeper (the “NTK”) demanded a charge for the alleged event and I herein maintain my defence to that demand as keeper of the vehicle for the following grounds:

1. Parking was adequately paid for and displayed

Without confirming their identity I know that the driver adequately paid the correct amount for the one hour of time spent parking and displayed the ticket clearly on the dashboard. For some inexplicable reason either due to a faulty keypad, sticky keys or other the incorrect registration has been recorded on the machine, as this car park machines have been used on many previous occasions with success. The incorrect registration should however be recorded on the Operator’s system and there should be clear evidence, within minutes of the vehicle entering, of a near identical registration.

It cannot be reasonable or proportionate for an error of this kind to lead to such a significant consequence particularly where that consequence is delivered by a fault in your automated system; had the car park been manned in person at the time it would have been observed that payment had been adequately made for the time the vehicle remained and the slight difference in registration would have not have mattered. Furthermore, the period the vehicle remained is a precise fifty minutes i.e. within the hour’s worth of time purchased and frequently done so. It is not, in contrast, an arbitrary period of time slightly above or well below an hour. The hour of time paid for coincides with usage of the nearby market, which also charges the same amount for an hour of use.

The Operator will be aware that patrons of the market use this car park for overflow purposes. The driver having done this would have had to pay for an hour at the council operated market car park had there been a space. Therefore payment for parking, being identical for an hour, would not have been avoided under any circumstances. It was presumed that the car park was manned and the ticket displayed would be seen however it now transpires, and without any prior knowledge, cars in the car park are not being manned and are totally reliant on what is believed to be a hidden camera system. Unfortunately due to the vehicle being cleaned the ticket itself has been lost.

The issuance of the charge is therefore entirely biased when the only evidence of payment now remains on a computer system held by the Operator, which I request to see disclosure of, as this should clarify the error in the vehicle registration, which is as a result of a fault with the keypad/machine itself. It is completely inconceivable that another vehicle of similar registration entered and left for the period of time shown and that it happened to be the same make and model.

Furthermore, if as it is only now known, the car park uses an automated system to recognise registration numbers - why is the inputting of the number which is prone to error continuing to be a part of the system? A simple search of this issue on the Internet reveals this has happened to a customer of this very car park upon whom a fine was incorrectly issued. It was cancelled for this reason. There is clearly a flaw in the system and it is only with the Operator’s full co-operation and disclosure that it can be demonstrated that the parking was paid for within a short duration after entry. It will also serve to demonstrate that as parking was paid for adequately at no point was any loss incurred that is recoverable.


2. Contrary to Schedule 4 paragraph 9 (5) Protection of Freedoms Act (2012), the Operator did not deliver the NTK within the prescribed fourteen days to myself the keeper of the vehicle.

I state that in accordance with 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. The Operator has failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording: -

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post.

Further, paragraph 9(5) states:

‘‘the relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived 18 days after the alleged event. See the enclosed copy of the Operator’s NTK with the ‘event date’ of ........ and NTK date of ....... (i.e. sent on the 14th day). Accordingly, having been sent on the 14th day, and that being a Saturday, confirms in accordance with POFA (2012), the earliest it could have been ‘delivered’ for the purpose of the act was by ........ (17 days after the alleged event). It was in fact actually received on ........ - 18 days after the alleged event. In either case the NTK was delivered completely contrary to the time period stipulated by the law.


3. The Operator has not shown on the NTK that the individual it is pursuing was in fact the driver.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, it must first be considered whether the appeal body 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. 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 POFA 2012.

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 copy NTK I have enclosed does not, contrary to the provision in paragraph 9(2)(f) of POFA, include the legal requisite warning of liability to the keeper materialising in place of liability to the driver if after expiry of 28 days the parking charge has not been paid in full by the driver. The NTK therefore contravenes the statutory legal position to find the keeper liable in place of the driver.


4. The car park signs fail to transparently warn drivers of what the ANPR Data will be used for or any information about SAR rights;

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.

The Operator’s signs do not comply with these requirements because they fail 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 Operator’s signs that contain a fine print of their terms and conditions are comprised of text that is not legible, coherent and in such small font it cannot be read in short duration to determine what the APNR data would be used for.

In particular, and not brought to obvious attention of any user of the car park, is the vital information that these camera images would be used in order to issue a parking charge. There is no wording in the sign, that is immediately apparent and legible, to say that the cameras are in any way related to the commission of parking charges. The only reference to parking charges being issued to users makes no mention of the charge being issued as a result of images captured by the ANPR cameras. Indeed it was not even known until the NTK was received that an ANPR system was in operation.

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:

(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.

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

(1) 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 also 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)-

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) 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.''

There does not even exist on any sign or elsewhere any symbol of a camera that at the very least would suggest they are used for security purposes let alone for the harnessing of customers personal data. Furthermore nothing is stated in the terms and conditions about a parking charge arising as a result of an incorrectly registered vehicle registration mark.

Breach of SAR rights

The ICO’s CCTV Code of Practice states:

“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.”

The Operator has not stated on their signage a Privacy Notice explaining the
keepers right to a Subject Access Request (SAR). Indeed the Operator has not
stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork. The NTK and appeal rejection letter fail to include this despite there being a Privacy Information heading on the back of the NTK.

This is a mandatory requirement of the ICO’s CCTV Code of Practice (5.3 and 7.6), which in turn is mandatory within the BPA’s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful. 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, it is again established that the parking charge notice was not properly given.


5. Entrance and parking signs are poorly positioned, not prominent and or legible from parking spaces and there is inadequate notice of the sum of the parking charge itself;

BPA Code of Practice (18.1) states:

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.

BPA’s Code of Practice (18.2) states:

Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.

Figures 1 and 2 demonstrate that upon entry, using the right entry of the two, the first sign at the entrance with terms and conditions is a significant distance away from the driver on his passenger side and it is inconceivable to read the small print i.e. the full terms and conditions upon entry to the car park. Any driver using the right entry is also then faced with the reverse of a sign.

BPA’s Code of Practice (18.3) states:

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

Signs that are dotted around the car are lofted on poles and in all cases are positioned high up behind the driver (if reversed into the bay) in a position they cannot be read when deciding to stay in the car park. They most certainly are not observable from all parking bays and this is made worse by reversing into the bay. Note that reversing into a parking bay is recommended practice for all road users and forms part of UK driving test. On further inspection of the signs it is clear that they contain a incredibly small font section of a significant amount of text of the full terms and conditions. This is neither legible, coherent or able to be read in fast enough time that it would take a reasonable person to decide to remain in the car park.

Where the signs above pay and display machines refers to the parking charge specifically this is not as prominent as it should be in accordance with Lord Denning’s judgment in Spurling (1956). In reference to an unfair clause, and the more unreasonable it is, it would necessitate being highlighted in red ink on the face of the document and with a red hand pointing to it before it could be held to have been given sufficient notice to the other party to the contract. The wording and amount is in small font, the same size as other parts of the text, and not in bold text and not on a bold background.

As a result a user of this car park cannot have been afforded a fair opportunity to read about the full extent of the terms and conditions involving the charge. Given the circumstances and the position in contract law and elements of a contract it cannot be determined that a contract had even formed at the material time. A contract will materialise where an offer and its terms are fully communicated to the offeree by the offeror and thereafter accepted. Acceptance however cannot be deemed to have occurred where the full terms of the offer are not in fact communicated, or are not able to be.


6. 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, 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).

Section 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.