Lamorna Cove again!

goodneighbour

Yes sorry- I didn't know the best way. Will do that now. Sorry for delay - I've got my close family in Spain and am watching the news and somehow this stupid parking ticket slipped my mind!  But I have to deal with it regardless.

goodneighbour

Part One

PCN Number  XXXXXXXXX

POPLA Code   XXXXXXXXXXX

Date of Parking Event 7 December 2019

Name  XXXXXXXXXXXX, Registered Keeper

I am the registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

 

Background information

1. On the 7th of December 2019  my vehicle was driven into Lamorna Cove car park as advised on the PCN.  As Keeper of the vehicle it is my right not to name the driver.

2. The vehicle was parked in a private space leased to Mr G of XXXXXXXXXXX,  with his permission and he has written several times to the landowner and the agent to confirm this fact and to ask for the PCN to be cancelled.

3.  Mr G has a 99 year lease on this space and it is clearly marked, see photos attached.  See also his email to Premier Park confirming the terms of his lease.

4  The space is leased from Mr S, landowner of Lamorna Cove Car Park.  There is no requirement within the lease to display a permit nor to advise Premier Park of any registration number.

5.  The landowner has stated that a camera is trained on this leased space in order to prevent those people who park there from receiving PCNs.

6. On many occasions those who park there have received  PCNs after legitimately parking in the leased space. 

7.  Miss S – the Agent in charge of the car park - of those PCNs sent out in error,  has had to cancel several PCNs for vehicles parked in Mr G's space however, although she promised to cancel PCN XXXXXXXXX (see email attached) she never informed Premier Park of the error and this PCN has not been cancelled.   Attached is the email from Premier Park confirming that Miss S had taken no action on this ticket.

8. We believe that the camera is malfunctioning or somehow not registering those cars which are parked in the Magazine space and although Mr G has tried to get written confirmation that Premier Park knows of his right to permit parking in the space, he has not received satisfactory answers.

9.  There was no legal obligation to buy a parking ticket and therefore no liability to pay a parking charge. The landowner has not suffered any loss from the parking of XXXXXXX in a leased space .  The private parking space leased by Mr G is already covered by the lease between him and the landowner. This lease takes precedent over any liability to pay for a parking ticket.  The operators signs cannot override the existing rights covered by the terms of the lease.

 

 

 

 

Grounds for my appeal:-

1. No Proof of parking.  The ANPR system is unreliable

2. ANPR images of vehicle entry and exit do not show location of parking not prove that the vehicle was parked incorrectly.

3.  ANPR images are not date and time stamped so are inadmissible.

4. Premier Park Ltd has no contractual authority.

5.  Agent promised a full check of camera system

6. No Keeper liability

7. The Lease between Mr G and Mr S for parking space

1.  ANPR unreliable. No Proof of Parking

 

I believe that the ANPR system was neither reliable nor accurate on the day in question. Otherwise it would have captured the vehicle XXXX XXX parked legitimately in the private space. The British Parking Association 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. Other drivers and guests at The House have been wrongly issued  PCNs  and in an email Miss S, the agent, agreed to cancel the ticket and also to have the cameras checked. However there has never been any confirmation or evidence that this was done.  And the PCN XXXXXXX has not been cancelled.

 

Miss S – The Agent -  stated in an email (attached below) that the camera system would be checked due to the number of PCNs sent out to owners of vehicles parked in the leased space and she promised that residents would be informed of the outcome.   There has been no further information on this.

 

Independent research has not found that the ANPR 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.

 

I refer to Section 20, Paragraph 5 (S20P5) of the British Parking Association Code of Practice:
“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”
Parking Eye is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Parking Eye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. .Also the signs fail to inform that actual entry where the cameras are start the period of so called “parking” and only exiting past the cameras completes that period. The total time spent parked in a bay is different. As such the contractual parking time inferred is insufficient to form a proper contract.
The ANPR system is unreliable and neither synchronised nor accurate Premier Park’s evidence shows no parking time, merely photos of a vehicle driving in and out.  It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay machine clock nor even to relate to the same parking event.

No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA COP breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.
21.1) You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 )Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
21.3 )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

The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers are “…parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” (18.5)
On the basis of all the points I have raised in my POPLA appeal the parking charge notice fails to meet standards set in the British Parking Association Code of Practice I reject the charge and would appreciate that you review all my points and allow the appeal .

 

goodneighbour

Part Two

2. . ANPR images of vehicle entry and exit do not show location of parking nor that the vehicle was parked incorrectly.


The vehicle images contained in the PCN show arrival and departure time of the vehicle, but it does not specify where the car was parked. Paragraph 9 (2)(a) of PoFA 2012 Schedule 4 requires the PCN to "Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.

The use of ANPR in a private car park is regulated by the BPS´s Code of Practice and this PCN number XXXXXXX was incorrectly issued because no evidence of Location of Parking was specified on the PCN.

3. ANPR images are not date and time stamped so are inadmissible

The PCN in question contains two images of the vehicle entering and exiting the car park. The time and date stamp have been added above the images but are not part of the images. The vehicle in question could have been captured by APRN at any time or on any date. As a result these images cannot be used as confirmation of the incident and the Premier Park Ltd claim was unauthorised.

 

 

 

4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. Premier Park has no contractual authority

 

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

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

 

f  how Premier Park monitors vehicles parked in the space allocated for users of The XXXXXXX.

 

Mr G who is the lessee of The XXXXXXX parking space where the vehicle was parked would also like to see the contract between Premier Park and The Landowner to assess whether his right to parking is being protected by an onsite camera which is regularly checked for reliability.  I enclose his email to Premier Park on this matter.

Vehicles parked in the private leased space reserved for The XXXXXXX are exempt from buying a parking ticket.

 

 

 

5. The Agent promised to arrange a check of the camera system.

I require Premier Park Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that Premier Park Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:

''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 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.

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

 

 

 

 

6. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

 

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

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

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

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

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

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

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

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

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

 

 

goodneighbour

Part Three

7. The Lease between Mr G and Mr S

 

This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

This question was tested recently in an Appeal case in June 2016 (transcript attached as evidence for POPLA*). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

Sorry it's in three parts. I tried to make it as long as I could using what seemed useful and including even those things that might not be useful.  Did my best!

 

 

 

 

 

 

Fruitcake

Delete your PCN and PoPLA numbers! Someone could do a lot of damage with that information.

Delete other people's personal data such as that of Mr G, Mr S, Ms S etcetera.

You don't want a claim for a DPA/GDPR against you!

goodneighbour

Done - it's ok to use initials? 

goodneighbour

Hello, my POPLA code arrived on February 17th and I think today March 16th is the 28th day so I have to send it in today. I do also remember seeing that although it says 28days we actually have 31 days. Or did I dream that?

So, I'm planning to send it all in later today - if anyone could take a look I'd be so grateful.

Thanks

goodneighbour

Hello - I am looking now at POPLA. I know I need to NOT fill in boxes and to use OTHER and send a PDF. But do I press other at the first stage where they ask for reasons we are appealing or do I first click my reason for appealing then use other?  These are two different routes.

Thanks

goodneighbour

Hello - is anyone there?  I'd really appreciate just a 'go ahead' from anyone who has seen my POPLA appeal. I am a bit out of my depth here with those arguments so I'd like to know it's ok before I send it off. Has to be done today. Thanks

goodneighbour

Just bumping this up in case anyone has time to take a look. I am very worried about sending it in without a second opinion. Must be done today. Thank you!