PCN from Civil Enforcement Ltd @ Starbucs

Coupon-mad

I presume it is pofa compliant

Never assume - it makes an '@ss' out of u and me.

The NEWBIES thread gives you a link to the POFA to check it YOURSELF (not us)!

nikkietoni

Sorry! I meant I have checked and it does look compliant but I will check again thankyou x

nikkietoni

Please can my appeal be checked before I submit it to popla please.

I am the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1. No Grace Period given

2. A compliant Notice to Keeper was never served

3. Hidden signage and not seen so no contract could be entered into or formed.

4. No evidence of Landowner Authority

5. The ANPR system is unreliable and inaccurate

1)The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and one at the start (of a minimum of 10 minutes each) Therefore two Grace Periods should be allowed amounting to 20 minutes altogether. The time parked at Starbucks over the 90 minutes allowed was 13 minutes 34 seconds therefore within the 20 minutes grace period. There was traffic build up on entering the small car park as the drive-through is on the same route as the car park and the exit and so vehicles are entering and leaving all at the same time. There is always a traffic jam. There is restricted width of the car park spaces causing difficulties. Hence the same on leaving the car park.

+see aerial map of car park and drive-through

BPA’s Code of Practice (13.1) states:

“Your approach to parking management must allow a driver who enters your car park .. to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA (13.2) states “You should allow the driver a reasonable grace period.

BPA (18.5) states 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.BPA(13.4)does not apply in this case (it should be made clear - a contract was never entered into) it is argued that the duration of visit in question is not an unreasonable grace period. The Operator on this occasion have displayed on their PCN the entry and exit times from the car park. They are not the ‘period of parking’ although the law requires the ‘period of parking’. Taking into account the travel time to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory grace period as outlined above.

2) If Civil Enforcement want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and they have not issued and delivered a parking charge notice to the driver in the place where the parking event took place the Notice to Keeper must meet the strict requirements set out in the Schedule (particularly paragraph 9) I have had no evidence the Operator has complied with the BPA requirements for the PCN issued so require them to evidence their compliance to POPLA. 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 is insured or the driver was entitled to drive the car. I can confirm that they were. 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 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 Notice to Keeper. As the keeper of the vehicle it is my right 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 because the fact remains I am only the keeper and 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 POFA in this case to show that I have not complied with terms in place on the land and show that I am personally liable for their parking charge. 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 “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 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 who is 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. No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is not attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK 6061796103 v Parking Eye 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. So 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.''

3) Signs in this car park are not prominent, clear or legible from all parking spaces. Also since the incident signs have been increased following complaints. It is submitted that the driver did not have a fair opportunity to read about any terms and Conditions as the signage is brand new. The car park was always timeless and no restrictions. The signage was not expected and 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 some parking spaces. The terms appear to be displayed inadequately in letters less than half an inch high. I put the operator to strict proof as to the size of the wording on their signs. As further evidence that this is inadequate notice, with Letter Height Visibility and perspective 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 and Conditions. The signs are sporadically placed and obscured in some areas and hidden by large vehicles parked and passing through the drive through.. 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 and expressed in plain and intelligible language and is legible.

A letter height of less than half an inch showing the terms and the 'charge' and placed high on a pole and in crowded small print is inadequate in an outdoor car park.

Where terms on a sign are not seen and not clearly marked 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.

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.

The signs relating to 'Terms and Conditions' have to be read while travelling into the site so makes their placement completely unacceptable.

They are unremarkably not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility .

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. The judgement was binding case law from the Appeal Court and supports my argument

This was a victory for the motorist and so where terms on a sign are not seen and the area 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.

4) No evidence of Landowner Authority the operator is put to strict proof of full compliance with the BPA Code of Practice. It is suggested that The Operator does not have proprietary interest in the land and merely acting as agents for the owner/occupier. I ask that The Operator be asked to provide proof they have the authorisation at this location in the form of a signed and dated contract with the landowner which specifically grants them the standing to make contracts with drivers and keepers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

They must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken. 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

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 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. operator to strict proof of full compliance:

Not forgetting evidence of the various signatories are:

name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal document

5)The ANPR System is Neither Reliable nor Accurate

”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 Civil Enforcement Ltd 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 (as yet unseen) “photographic evidence” to ensure the accuracy of the ANPR images. In terms of the technology of the ANPR cameras themselves, The BPA does not audit the ANPR systems in use by parking operators, and the BPA has no way to ensure that the systems are in good working order or that the data collected is accurate. Independent research has not found that the technology is 'generally accurate' or proportionate or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks. Two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits:

Steve Clark Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says: "You were concerned about a comment from the POPLA assessor who determined your case which said:

‘In terms of the technology of the cameras themselves, the BPA audits the camera

systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate’

You believe that this statement may have been a contributory factor to the POPLA decision going against you and required answers to a number of questions from us.

This is not a statement that I have seen POPLA use before and therefore I queried it with them as we do not conduct the sort of assessments that the Assessor alludes to.

POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of

the BPA Code which says: “You must keep any ANPR equipment you use in your car parks in good working order. You need to

make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.’

Our auditors check operators compliance with this Code clause and not the cameras themselves.'' ICO’s CCTV Code of Practice state that if Civil Enforcement Ltd 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 Civil Enforcement must regularly evaluate whether it is necessary and proportionate to continue using it. It therefore follows that I require The Operator to provide proof of regular privacy impact assessments in

order to comply with the ICO’s CCTV COP and BPA. I also require the outcome of 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.”

The Operator has not stated clearly on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). This is a mandatory requirement of the ICO’s CCTV COP (5.3 and 7.6) which in turn is mandatory within the BPA’s COP and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful. By virtue of the nature of an ANPR

system recording only entry and exit times, Civil Enforcement Ltd are not able to definitively state the period of parking. I require Civil Enforcement Ltd 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.I contend that if the vehicle was in fact parked for the period stated by the Claimant, it clearly was not in breach of the parking terms and conditions, as it was in accordance with the Grace Period permitted by the BPA Code of Practice.

I contend that it is wholly unacceptable to rely on unclear photos that provide no evidence of date, time or location in an attempt to profit by charging a disproportionate sum where no loss has been caused as parking was FREE anyway.Er

Coupon-mad

Just seen this when reviewing a few posts from last week!

If you haven't sent it yet, then that POPLA appeal is good and covers the bases, albeit the landowner and signage points are shorter than the template versions of them in the NEWBIES thread post #3, so most people would use the longer versions.

You also mentioned these were 'new signs' yet I didn't notice in your draft POPLA appeal, that you quoted the BPA CoP abut new restrictions needing extra notices to draw the attention of local drivers, to meet the high bar for unexpected onerous terms in Lord Denning's 'Red Hand Rule'.

You need to say that and quote the CoP section about it, too.

If you have already submitted this appeal, mention the above at 'evidence comments' stage.

If you are in time to change this, I would go into more detail and artificially 'split' that 13 minutes into, say, 5 minutes to drive in, then 8 mins to leave, so the Assessor thinks they are both reasonable. And use POPLA's own words (I took this from POPLA DECISIONS, a post about a winning case this week and added it to some of your wording):

1. The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our 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,” he explains.

“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.”

BPA (18.5) states ''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''.

(a) On arrival - the 'observation period':
There was traffic build up on entering this car park, because it is narrow/single lane entry, and the drive-thru is on the same route as the car park and the exit. Vehicles were entering and leaving all at the same time and there is always a traffic jam at this site when entering and leaving. There is also a fairly restricted width of the car park spaces, causing difficulties in waiting for cars to manoeuvre to park or leave spaces, then difficulties for the driver in then parking their own car.

I am a witness to this as I was an occupant of the car as well as its keeper. I can assert that it took 5 - 6 minutes before we were able to park, and at no time did we read any term that told us that the 'observation' time had actually started when we were in the queue and not even past the entrance threshold.

Even if it had said that, observation and grace periods must still be factored in, given the facts relating to each site, and 5 - 6 minutes is a reasonable grace/observation period to enter this car park, then queue behind the drive-thru traffic and give way to exiting cars before reaching one of the small spaces, then carefully park, then finally seek out one of the ludicrously high new signs and read it, which is the only point at which any contractual parking licence may have started (only when the driver has had a fair opportunity to read the terms and decide whether to stay, as Kelvin Reynolds stated).

Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected (new terms for this site) and onerous. POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes. In this case, therefore, the 5 - 6 minutes taken before being able to park and read the new signs at this particular site is a reasonable period.

(b) On leaving - the 'grace period'
BPA's Code of Practice (13.2) states: ''If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.''

BPA (13.4) reiterates this fact: ''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.''

Given the timings shown by the images (and subtracting the reasonable time explained above, on arrival) the operator is alleging that the driver exceeded the parking time after the end of the parking event, by 7 - 8 minutes. This is explained by the narrow entry/exit lanes and spaces and the queues for the shared drive-thru entry, meaning that even when a driver gets back to their car on time, they are prevented from leaving immediately due to the queues and restricted space in this site. As I was an occupant of the car I can attest that this was the case on the material date and that the driver did not actually park in a space for more than 90 minutes, thus there was no parking contravention at all.

I have also uploaded an aerial map of this car park and drive-through, to illustrate my point.

The Operator has displayed on their PCN only the entry and exit times from the car park. These are not the 'period of parking' although the law requires this to be stated, and to any right-thinking person the only reason for this is to engineer an 'outrageous scam' (Hansard 2.2.18 - the views of MPs during the Parking CoP Bill reading) by misleading POPLA. Taking into account the travel time to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory observation and grace periods as outlined above.

As such, 7 -8 minutes is a reasonable grace period to exit the car park after the parking contract has ended. The parking operator has issued the parking charge notice incorrectly. Accordingly, POPLA must allow this appeal.