unfair PCN?

prowla

As with all scams, all PCNs are unfair.

moneymagnet_2

Coupon-mad said:

Have they given you a fresh POPLA Code?

yes they have 

KeithP

It looks like you have used your real name as your Dropbox username.

moneymagnet_2

oh yes! Thanks - I will delete and try again!

moneymagnet_2

I am delighted to say, that by using the advice and the templates on this forum - my PCN has been withdrawn. I am happy to share my appeal, i tried to do this before, but my dropbox is in my name, so I had to take it down. If anyone can tell me how to share a document with pictures etc - I can share it as an example of a successful appeal. Thank you so much to those who have supported and to those who have provided such helpful information.

Umkomaas

If anyone can tell me how to share a document with pictures etc - I can share it as an example of a successful appeal.

Well done on your POPLA success. 👏. You could copy and paste it into this thread. If it's particularly long, you might need to split it up over a number of posts. 

moneymagnet_2

Here is my successful appeal (part 1 - part 2 follows below)

Please note the photos didn't copy across but they are explained in the text.  

Good luck I hope it helps someone! 

Appeal re POPLA Code: [XXX] v Smart Parking Ltd

Vehicle Registration: xxxxxx

POPLA ref: xxxxx

I, the registered keeper of this vehicle, received a letter dated 31/10/22 acting as a notice to the registered keeper. My appeal to the operator – Smart Parking Ltd – was submitted and acknowledged on [XXX] but subsequently rejected by a letter dated 30/11/22. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1)       Grace Period: BPA Code of Practice–non-compliance

2)       The signage is unclear, misleading and open to interpretation.

3)       The text messages sent by the company are misleading and incorrect

4)       No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

5)       The ANPR System is Neither Reliable nor Accurate. There is no evidence of period parked – this does not meet PoFA2012 requirements

6)       No Planning Permission from Plymouth City Council for Pole-Mounted ANPR Cameras and no Consent for signage on Gasking Street

 

1.       Grace Period: BPA Code of Practice– non-compliance

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:

“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking 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.”

BPA’s Code of Practice (13.2) states that:  

“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’s Code of Practice (13.4) states that:  

“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.”

The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

“The BPA’s 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.”  

“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.”  

It is therefore argued that the duration of time underpaid in question (which Smart Parking Ltd claim was 12 minutes) is not an unreasonable grace period, given:  

. a) It was not  sufficiently clear from the sign that card payments were not accepted and therefore the time taken to download the app and upload credit card details must be taken into account.

.b) It could reasonably be argued that an extra 2 minutes grace period should be allowed for someone in their sixties who is not fully ‘IT fluent’.

. c) If it can take someone 10 minutes to read and consider the signs before deciding whether or not to pay, it is reasonable therefore to give the same amount of consideration to those who decide to pay and stay at the car park

.d) The sign at the entrance says that ‘parking must be paid at the machine within 10 minutes of arrival.’

On the date in question the vehicle entered the car park, waited for another vehicle to manoeuvre out of a space and then parked. The driver read the sign, realised, that card payments could not be paid and proceeded to download the app, upload their card details and then had to verify them, before paying.  The time of payment was 12.22. The time of arrival in the carpark was 12.12.20 – this is a period of 9 minutes and 40 seconds so within the 10-minute window to pay.

2.  The signage is unclear, misleading and open to interpretation.

 BPA’s code of practice 19.3 states:

“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

There are insufficient signs and they are cramped (in terms of word count) all terms and conditions are written in tiny text the across of the sign (see Figure 1). It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before the action of parking and leaving the car. This sign is not visible from a car parking space, which means the driver has to leave the car to read it. It is not possible to stop outside the car park as the road has double yellow lines all the way along This serves merely to increase the time taken to:  

 l Read the full terms and conditions and made an attempt to decipher the confusing information being presented

Although it states you must pay for the duration of your stay – this could easily be interpreted as the point from which you have been able to pay - and the phrase ‘‘parking must be paid at the machine within 10 minutes of arrival’ could easily be interpreted as an unchargeable grace period to park and pay. 

The BPN code of practice 20.3 says:

“If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain your terms and conditions”

This is not clearly shown on the sign – the only clear part is the £1 per hour notice.

Figure 1 – parking sign – terms and condition 

 

3.  The texts sent from the company are misleading.

The text messages from the company are misleading – the text below (figure 2) clearly shows the time the ticket was paid, but it also shows a time to leave. This is in contradiction with the assertion that you must pay for the total time of your stay. Anyone who receives a text that tells them what time they need to leave by will naturally follow that advice. It is misleading to give a departure time if the operator insists on charging for the time from entry. The text should have said “you have paid for 3 hours parking from the point of entry”  – it does not – it clearly says “you are parked from 12.22 to 15.22.” This means that every single person who pays by the app will be given incorrect information about the time they have to leave the car park, unless they are paying before they enter and park. This giving of incorrect information will cause many people to be late back to their care and it looks like a deliberate attempt to catch people out which I believe would be a secure defence in court. proceedings.

Figure 2 – confirmation of payment text 

The second text message (Figure 3) is also misleading as it clearly states there is still time left on the parking time – this text message was sent at 15:38 - 16 minutes after the parking time had expired – (15:22). If the company are telling people that they have time left when in fact the time has run out then they cannot justify issuing charges.

Figure 3 – reminder text

4.           No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Section 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

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

7.3 The written authorisation must also set out:

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

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

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

d)  who has the responsibility for putting up and maintaining signs

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

 

moneymagnet_2

Part 2 

5.           No Evidence of Period Parked – this does not meet PoFA 2012 requirements.

The ANPR system is flawed as you cannot say how long the vehicle was parked, only when it entered and exited the car park. The assumption that the time between the two ANPR captures is parking time is incorrect. There was a period of time waiting for a vehicle to leave, reading the signs, and as the car park is cramped it took some time to manoeuvre into a space. Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.  

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: 

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”  

Smart Parking Ltd’s notice shows that the vehicle entered Ebrington Street Car park at 12.12 and departed at 15.25. At no stage does Smart Parking Ltd explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

It is not in the gift of Smart Parking Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. 

By virtue of the nature of an ANPR system recording only entry and exit times, Smart Parking Ltd are not able to definitively state the period of parking.

ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question.

 

In this case, as the driver drove in and stopped to allow another driver to return to their vehicle and drive away before parking, so the ANPR system has indeed failed and the operator has breached the first data protection principle by processing flawed data from their system. 

Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, and was also condemned by the BPA and the ICO.

As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO when the public, or groups, make complaints.

I require Smart Parking 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 PCN.

                         

             

6.              No Planning Permission from Plymouth City Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

A search in Plymouth’s planning database does not show any planning permission for the pole-mounted ANPR cameras for the Ebrington Street Car park, nor does it show any advertising consent for  the signage exceeding 0.3m2  erected on the railing by the entrance.

Figure 4 – external sign

 

UK government guidance on advertisement requires:

“If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under. It is criminal offence to display an advertisement without consent.”

If no planning consent has been obtained it clearly proves Smart Parking Ltd is/has been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.

I request Smart Parking Ltd provides evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (31/10/2022).

Given the significant breaches of the code of practice, the misleading and confusing signage and the deliberately misleading information I request that this parking charge notice is cancelled.

 

END

B789

On which point did the POPLA assessor agree with you and cancel the PCN? Over on the POPLA appeal thread, could you post the POPLA decision, possibly breaking their usual wall of text into a few paragraphs?

moneymagnet_2

It doesn't actually say - it just says that the operator has withdrawn the appeal - so therefore POPLA are no longer involved. My guess is that the operator were presented with the appeal and decided to give up. See the text below:

"The operator has contacted us and told us that they have withdrawn your appeal.

If you have already paid your parking charge, this is the reason your appeal will have been withdrawn. Unfortunately, you cannot pay your parking charge and appeal, which means that POPLA’s involvement in your appeal has ended. You will not be able to request a refund of the amount paid in order to resubmit your appeal to us.

If you have not paid your parking charge, the operator has reviewed your appeal and chosen to cancel the parking charge. As the operator has withdrawn your appeal, POPLA’s involvement has now ended and you do not need to take any further action.

Kind regards

POPLA Team"