MET PCN at BP Stansted - POPLA Appeal advice pls

Disgruntled_driver86

Hi all

I've read the excellent @Coupon-mad Newbie advice article, appealed the PCN and received my POPLA reference. I've also found an excellent template from a previous appeal (Link) but having 'driven around' the gas station on google maps it looks like they made a few changes to the signage recently so I can no longer make all the same arguments, though I would still say that they are unclear and scattered which are not visible from all car parking spots. They also now seem to be in compliance with Schedule 4 of POFA 2012 as the PCN includes the address and time. 

Below is what I have so far - would be grateful for any additional advice on what to include please. 

Btw; the driver at the time had no idea about the parking limit and - besides - they made multiple purchases totalling nearly £100 which now they think would have 'reset' any timelines... 

Appeal letter: 

30 September 2021

 

Supporting information for my appeal re Parking Charge Notice no.: XXX

 

1) MET has deliberately chosen not to use POFA has not shown that the individual 
who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case
Carly Law 6061796103) 

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.

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) 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

3) 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

4) Amount demanded is a penalty and is punitive, contravening the Consumer Rights
Act 2015. 

The authority on this is ParkingEye v Beavis. That case was characterised

by clear and ample signage where the motorist had time to read, and then consider
the signage and decide whether to accept or not. In this case the signage was
neither clear not ample, and the motorist had not time to read the signage, let alone
consider it, as the charge was applied instantly the vehicle stopped. The signage
cannot be read safely from a moving vehicle.

5) I would also bring into question the authenticity of the photographs taken of the
vehicle – most notably the time stamps. By close examination of the photographs,
the details are added as an overlay boxes on-top of the photos in the upper left hand
corner. It is well within the realms of possibility for even an amateur to use free
photo-editing software to add these white boxes and text with authentic looking
metadata. Not only is this possible, but this practice has even been in use by UKPC,
who were banned by the DVLA after it emerged.
I would challenge MET Parking Services to prove that a stationary, highly advanced
camera was used to generate these photos (including viewing direction, camera
location etc.). I would also challenge MET Parking Services that they possess the
technology to generate these precise types of photographs, as the date stamps have
been applied to the photo in such an amateurish way (there are much more
sophisticated ways of hardcoding photo data)

I therefore request that POPLA uphold my appeal and cancel this PCN.

 

Yours faithfully

[NAME]

 

Coupon-mad

Remove #5 and embed into the actual document, stamped with time/date of photos from the metadata, pics of the lack of signs (not close ups of them).

Disgruntled_driver86

Thanks @Coupon-mad

Do you still think there's a decent chance of success? I believe the 'discounted' rate offer of £60 falls away once you appeal with Popla? 

Coupon-mad

If this was a non POFA PCN and you haven't said who was driving (and your appeal covers this) then you have 100% win ahead.

D_P_Dance

Have you complained to your MP?

Disgruntled_driver86

D_P_Dance said:

Have you complained to your MP?

No - hoping it won't have to come to that as taking up a lot of time & effort. Called the BP care team as well (per their own suggestion from multiple terrible reviews on Google Maps) but they said they can't do anything and I should liaise with MET. Even though they bloody own the station...

kevalicat

Hello all. Sorry to jump in on this one, but I'm sure I've read that MET haven't historically gone as far as court? I'm probably wrong, or it's outdated info?  

Coupon-mad

No it's still true.  Think they may have tested the water with a multi ticket case using a robo claim firm but not even sure that went beyond LBC or demands.

Anyway nothing to do with this OP's thread, as he/she is about to win at POPLA due to no keeper liability.

kevalicat

Thanks Coupon-mad, sorry to get in the way here. 

Disgruntled_driver86

Success - just got the response from POPLA and they won't appeal :-)

Thanks everyone!!!