MET parking ticket validation

DrEvazan

Firstly apologies. I’m sure someone must have talked about this before but I can’t find anything about failure to validate a MET parking ticket, so I’ll try and be quick and to the point!
The keeper received a ticket from MET parking to say that they hadn’t validated their parking ticket when they left McDonalds at Gatwick. They have pictures of the car leaving. The driver had to use the button on the machine to get out. They say that the conditions the driver has broken are that they didn’t validate the ticket at time of purchase and used the release button to get out.
The keeper has contested this. They haven’t accepted that they were the driver and have not named the driver. They have sent an initial reply stating that the ‘driver’ handed the ticket to the McDonalds staff at time of purchase (which is true), went to the barrier and inserted the ticket. The barrier didn’t rise so the driver pressed the button thinking it was an intercom. It wasn’t and the barrier rose. The driver was unable to reverse as there was now a queue behind them and so they exited. They then parked up and went in to McDonalds to ask why the ticket hadn’t worked and a dis-interested member of staff handed them a MET Parking enquiry form and said take it up with them. This is all true. The keeper then sent copies of this form, the ticket and proof of purchase to MET. They have rejected this response. This was their reply.

The terms and conditions of parking are clearly stated on the signs prominently displayed at this location and these include that parking is for McDonald's customers only and that they must validate their stay with proof of purchase in the restaurant prior to exiting the car park and use their validated ticket to raise the barrier.

The signs also state that pressing the button to raise the exit barrier may lead to a charge notice being issued. When you left the car park you acknowledged that you had not validated your stay and confirmed you were parked without authorisation by pressing the button to raise the barrier instead of using a validated ticket. We therefore believe the charge notice was issued correctly and are upholding it.

This is a nonsense because at no time did the keeper say that they were the driver but their reply states that the keeper has accepted that they hadn’t validated the ticket. The keeper hasn’t accepted anything. The driver handed the ticket to the McDonalds staff and assumed that they had validated it. It wasn’t for the driver to validate. They didn’t have access to the machine.

Anyway, I know this has gone on but, I’m now at the Popla stage and I wanted to know if anyone had any templates. I have read the newbies #3 but not sure they relate to non validation. My argument is that the driver handed the ticket for validation. How can they be sure that the staff had done it right and that the machine was in good working order and that they had no option to exit because they couldn’t reverse.

Any help greatly appreciated!

Fruitcake

Since you didn't reveal the identity of the driver in your appeal, edit your post to remove information about who did what.
Only ever refer to The Driver and The Keeper, even on here.

The driver handed the ticket to the McD's staff etcetera.

Get pics of the site and signage. Use ALL the appeal points available rather than try to find a specific one about lack of validation, which you will demand they prove anyway.

Not the landowner, no standing to issue charges, non-PoFA complaint NTK, frustration of contract, grace periods, inadequate signage which includes signs telling a motorist how to validate a ticket. A motorist has no control once the ticket is in the hands of the staff.

DrEvazan

Thanks. Post amended. I won’t be able to get pictures of the signage as I don’t live any where near Gatwick. I didn’t know whether there was already a usable template that relates to ‘non validation’ in the threads, where I could add that they need to prove that the ticket was validated by the staff, that they have had training on how to use it and that it was in good working order. Otherwise it could be a scam where they pretend to validate to get tickets issued!

Umkomaas

DrEvazan wrote: »

Thanks. Post amended. I won’t be able to get pictures of the signage as I don’t live any where near Gatwick. I didn’t know whether there was already a usable template that relates to ‘non validation’ in the threads, where I could add that they need to prove that the ticket was validated by the staff, that they have had training on how to use it and that it was in good working order. Otherwise it could be a scam where they pretend to validate to get tickets issued!

Waste of time trying.

Get this to POPLA and use the tried and tested processes outlined in the NEWBIES FAQ sticky, post #3 .

Also do a forum search on keywords 'MET POPLA' and find recent winning POPLA appeals against MET. Use them as your basis for the development of your own. Let us see your draft before submission. Don't miss your POPLA deadline.

HOW TO USE THE FORUM SEARCH FUNCTION:

Hit your 'Back' button to get back to the forum thread list. On the bar just above the threads you'll see the 'Search' function. Click on the 'Advanced Search' button and on the following page place your keyword(s) in the 'Search By Keyword(s)' and make sure the 'Show Results As' button (at the foot of the window) is changed from 'Threads' to 'Posts'.

Fruitcake

Forget the specifics of validating a ticket. Focus on the basics of the appeal points I mentioned in my previous post.

I seem to recall this problem with being able to leave a site by pressing a button, even if the ticket has not been evaluated. Do a forum search using the same location as your case, setting the search criteria to search posts.

What did the caf! manger say when you complained?

Egbert_Nobacon

Email a polite complaint to McDonald’s CEO Mr Paul Pomroy explaining how you feel let down by the failure of his staff to validate your ticket.

paul.pomroy@uk.mcd.com

DrEvazan

Hi. Many thanks for all responses.

I have drafted this. I would be great full if anyone has the time to look at it and give feedback. I did manage to find someone else who’d been stung for non validation, so have used theirs as a template. I’ve added my own point two about staff/ machines not working. Thanks again.

POPLA Ref ______
MET Parking Services PCN no ______

A notice to keeper was issued on x July 2019 and received by me, the registered keeper of _______ for the alleged contravention: failure to validate stay in the car park' at McDonald's, Gatwick. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.


1) MET has deliberately chosen not to use POFA, they failed to comply with POFA 2012 act by not keeping to time scale when issuing NTK - therefore they can not hold the keeper liable.
2) MET has not provided any evidence that the staff at McDonalds have had training on how to use the validation machine and that the machine was in good working order on the above date.
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) Misleading system and signage at fault
5) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
6) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach. The ANPR system is neither reliable nor accurate


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

Date of alleged contravention was x July 2019. A notice to keeper was issued on x July 2019 and received by me (registered keeper) on x Aug 2019. That makes it 24 days since day of contravention till I (registered keeper) have received the NTK.

Under Protection of Freedoms Act 2012 Schedule 4

(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

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

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4 which they have not in this case. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 which in this case the operator is not.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

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

2) MET state that ‘the reason for issuing the charge notice is: failure to validate stay in car park’. Validation of the ticket has to be done by the staff at McDonalds. There is an assumption that when you give the ticket to a member of staff, they validate it and when it is given back to the driver it is validated. Drivers can not be held responsible if the staff/ machine have not correctly validated the ticket. On this occasion the driver handed the ticket to the member of staff at time of purchase and it was returned to them ‘validated’. The onus to correctly validate the ticket is with a third party. Apart from giving the ticket to staff, drivers are not involved in the validation process and do not receive any conformation that it has been done correctly. For this appeal, I require MET to provide evidence that the machine had correctly validated the ticket on the above date.

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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

4) Misleading system and signage at fault
The signage states that, 'motorists must validate their car park stay in the restaurant with proof of purchase prior to exiting the car park and use their validated ticket to raise the exit barrier. Pressing the barrier button to exit may lead to a charge notice being issued.' The driver of the vehicle understood this to mean that the parking charge would only apply to vehicles parked in the area where the barriers were in place, and therefore parked in a bay outside of this area, which was not controlled by barriers. This signage is therefore misleading and confusing for motorists.

5) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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

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

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.
There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, 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.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

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

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

6) Failure to comply with the data protection 'ICO CCTV Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.
BPA’s Code of Practice (21.4) states that:
“It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
- be registered with the Information Commissioner
- keep to the Data Protection Act
- follow the DVLA requirements concerning the data
- follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The_Deep

I have not read the above. Is there a mention of bye-laws? Do they apply?

DrEvazan

I don’t know I’m afraid. I’m new to all of this. I’ve tried to just use another users template. I would hope that points 1 and 2 would be enough.

DrEvazan

Hi. Many thanks for all responses.

I have drafted this. I would be great full if anyone has the time to look at it and give feedback. I did manage to find someone else who’d been stung for non validation, so have used theirs as a template. I’ve added my own point two about staff/ machines not working. Thanks again.

POPLA Ref ______
MET Parking Services PCN no ______

A notice to keeper was issued on x July 2019 and received by me, the registered keeper of _______ for the alleged contravention: failure to validate stay in the car park' at McDonald's, Gatwick. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.


1) MET has deliberately chosen not to use POFA, they failed to comply with POFA 2012 act by not keeping to time scale when issuing NTK - therefore they can not hold the keeper liable.
2) MET has not provided any evidence that the staff at McDonalds have had training on how to use the validation machine and that the machine was in good working order on the above date.
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) Misleading system and signage at fault
5) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
6) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach. The ANPR system is neither reliable nor accurate


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

Date of alleged contravention was x July 2019. A notice to keeper was issued on x July 2019 and received by me (registered keeper) on x Aug 2019. That makes it 24 days since day of contravention till I (registered keeper) have received the NTK.

Under Protection of Freedoms Act 2012 Schedule 4

(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

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

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4 which they have not in this case. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 which in this case the operator is not.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

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

2) MET state that ‘the reason for issuing the charge notice is: failure to validate stay in car park’. Validation of the ticket has to be done by the staff at McDonalds. There is an assumption that when you give the ticket to a member of staff, they validate it and when it is given back to the driver it is validated. Drivers can not be held responsible if the staff/ machine have not correctly validated the ticket. On this occasion the driver handed the ticket to the member of staff at time of purchase and it was returned to them ‘validated’. The onus to correctly validate the ticket is with a third party. Apart from giving the ticket to staff, drivers are not involved in the validation process and do not receive any conformation that it has been done correctly. For this appeal, I require MET to provide evidence that the machine had correctly validated the ticket on the above date.

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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

4) Misleading system and signage at fault
The signage states that, 'motorists must validate their car park stay in the restaurant with proof of purchase prior to exiting the car park and use their validated ticket to raise the exit barrier. Pressing the barrier button to exit may lead to a charge notice being issued.' The driver of the vehicle understood this to mean that the parking charge would only apply to vehicles parked in the area where the barriers were in place, and therefore parked in a bay outside of this area, which was not controlled by barriers. This signage is therefore misleading and confusing for motorists.

5) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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

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

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.
There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, 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.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

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

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

6) Failure to comply with the data protection 'ICO CCTV Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.
BPA’s Code of Practice (21.4) states that:
“It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
- be registered with the Information Commissioner
- keep to the Data Protection Act
- follow the DVLA requirements concerning the data
- follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

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

The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice. The ICO’s CCTV Code of Practice makes the following assertions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Umkomaas

On a very cursory skim it looks okay.

Your strongest suit is MET's failure to comply with PoFA requirements, and as long as you've got all the relevant (correct) dates highlighted to POPLA (they do struggle in understanding PoFA), then this should be a winner.

But my gut feeling is that MET will withdraw once they see your appeal, saving themselves the POPLA £30 fee they might otherwise waste.