Fine received while changing tyre....

Umkomaas

So with regards to the template - do I state now that I was merely not parking and was in fact changing the tyre and claim small vicissitude. Or is that for next stage?

Just use the template as it is. Be ready for your appeal to be rejected (99% are), get your POPLA code and go from there.  'Small vicissitude' is a more likely defence point (rather than a POPLA one) for a court claim - but nowhere near that yet. Hunker down for the long term; beyond a landowner cancellation, there is no quick solution. 

ivysaur

Good evening all. After an unsuccessful appeal, I have gone through the POPLA process and submitted my case last week. I based it on a number of points, finalising the fact I was not parking as broken down. However with their garbage evidence, I have received their confirmation of authority and note the agreement states the name of the previous premises retailer and not the current one. Is this an angle that I can pursue?

Fruitcake

You rebut anything and everything that supports your case.

Any of your points that they have failed to address should result in you stating that PoPLA must allow that point. Not having a contract with the current landowner will come under that.

Also check the BPA CoP to see if there is anything there that might help you with regards to being broken down/the driver changing a wheel.

ivysaur

Thanks for that, I will address the point they have covered incorrectly or not responded to. They have failed to address the breaking down of the vehicle - just that I have raised points not in my original appeal (I followed standard template) and I was deemed as waiting which is classed a parking. Literally no response to it.

Coupon-mad

Did you provide evidence to POPLA re the breakdown?  You can't add evidence now but I just wondered.

ivysaur

Coupon-mad said:

Did you provide evidence to POPLA re the breakdown?  You can't add evidence now but I just wondered.

Yes, the basis of my claim was as follows:

1) The entrance signs are inadequately positioned and 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
2) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3) 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
4) The ANPR System is Neither Reliable nor Accurate
5) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for
6) The car was not parked due to it being a broken-down vehicle

ivysaur

I have until Thursday this week to submit my response to Popla on the Operators evidence. I feel I can respond back to their evidence in relation to four of my grounds. I acknowledge I am over the character limit and am working on the reducing the length. Any comments would be welcome. I am hoping the lack of evidence of landowner authority is sufficient (prior to the fact I broke down). 

The appellant has the following comments and has linked this to where the Operator is disputing the appeal.

1)      The entrance signs are inadequately positioned and 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.

The operator has stated in point 28, that ‘the driver parked during the daytime; therefore all signs were perfectly visible.’ The time of the incident is not defined as daytime and is corroborated by the exit picture (18.11) which shows the car leaving at night (following a 49-minute period). The picture shows no day light so therefore the signs were not perfectly visible at this time would have been dusk into night-time. The operator has withheld these pictures at the outset in a deliberate attempt to subvert the appeal process. The daytime site photos show a lack of suitable lighting around the car park especially when parked at night.

 The car was located at the bottom left of the car park, which is corroborated via the exit picture (18.11) which shows the car reversing out of the bay. It is difficult to locate signs on the left-hand side of the car park with signs blocked by shrubbery and there are no signs at the bottom left of the car park. Together with an unlit car park, it is difficult to identify that all signs were perfectly visible. From reviewing the pictures, the only signs that may appear visible are those located on the other side of the car park located on the building. This would only be legible if a driver parked on that side of the car park.

To conclude, under point 26, the Operator ‘note the Appellant’s comment that the text is too small’. The photos of the car parking sign further evidence this with the £100 charge in small light blue writing just below a thick blue block. This text is very small which is difficult to read at the best of times if this sign was locatable. This is not comparable to the ‘Beavis case’ sign in terms of clarity and ease of eligibility of the contract terms to be entered into (figure 1 in the appellant claim). There is still no evidence of the entrance sign detailing the parking charge required when entering into a contract. How can a driver understand the terms of the contract prior to entry of the car park.

2) No Evidence of Landowner Authority - the Operator is put to strict proof of full compliance with the BPA Code of Practice

Following a review of the attached CONFIRMATION OF AUTHORITY, there are inconsistencies within the document that does not corroborate with BPA Section 7.

The premises stated on the Confirmation of Authority does not corroborate with the premises detailed on the Parking Charge Notice (PCN) and the car park signage. The car park signage and PCN states CAR PARK AT LENLEYS HOME. The Confirmation of Authority states that the premises is XXXXX XXXXXXX, 33 Sandling Road; Maidstone; Kent; ME14 2R, which is not the premises in question that a contract is to have been entered into between the Operator and Driver.

To conclude, the Confirmation of Authority also fails to meet the following limbs of section 7.3 BPA Code of Conduct:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined. Clarkes Furnishers is not the store on which the Operator may operate on thus this not met. XXXXX XXXXXXX and Lenley’s Home are two completely different organisation.

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation. There is insufficient information provided on the operations. This should include details on how or who are the permit holders and the 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. This information is not included within the attached agreement.

d) no evidence on who has the responsibility for putting up and maintaining signs. This information is not included within the attached agreement.

e) no evidence on the definition of the services provided by each party to the agreement. This information is not included within the attached agreement.

As the premises detailed within the Confirmation of Authority does not corroborate with premises details, the agent is therefore not authorised to make contracts with all or any category of visiting drivers. Together with the lack of information beyond this one-page Conformation of Authority, there is insufficient evidence that the operator has complied with Section 7 of the BPA Code of Practice and thus no contract could have ever been entered into between the Driver and Operator.

3) 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

With regards to this appeal ground, the Operator states under point 23:

'Please note that our Data Protection information is printed on the signage displayed at the entrance to this private land. Our full Privacy Policy can be viewed at www.ceservice.co.uk/privacy-policy/ and our Data Protection Officer may be contacted on dataprotectionofficer@ce-service.co.uk.

The appellant has included a photograph of the entrance site sign. This was taken at the site and has no reference to the google map picture. The information detailed on this sign is ineligible to a potential driver, with the text too small to read. The operator has failed to provide a corroborating photo of this sign to confirm whether they comply with this practice or not. The only photo provided by the Operator, was that of a car parking sign (which it is relying on) confirming that the Data Protection information is displayed at the entrance of the car park.  The appellant refutes that there is any evidence that the compliant Data Protection Information is printed on the entrance sign and that the Operator has provided the necessary proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. This is a serious BPA CoP breach. The argument that a driver should have good sight to read is inclusive if the Operator cannot provide a photo of the sign it relies with legible to a potential driver.

6) The car was not parked due to a broken-down vehicle

No information has been provided by the Operator to contest the evidence provided for the broken-down vehicle. The following has been provided by the appellant:

·       Map of the incident

·       Picture of the puncture

·       Invoice to repair the puncture

·       Description of the incident

The operator has acknowledge that the driver did not leave the vehicle in point 24 as follows:

Although the vehicle was not left unattended, parking is defined as ‘deliberately remaining stationary on land for an extended period’ and does not require the driver to exit the vehicle. Whether a person can be said to have ‘parked’ as opposed to have simply ‘stopped’ or ‘waited’ is a question of fact in each case. However, the words ‘parking’ and ‘waiting’ are largely synonymous for the purposes of parking disputes. That is to say that a driver who ‘waits’ at a site for their own purposes is also deemed to have ‘parked’ at the site.

The appellant refutes the claim that the driver waited or stopped, thus deeming it to be parked, thus a contract would be entered into. The evidence provided by the appellant proves that the driver was not parked and was dealing with a ‘small vicissitude’ and thus the driver never entered into a contract with  the Operator. The Private Parking Code of Practice states that operators must recognise a number of incidents which warrants cancellation of a parking charge. This includes c) where the vehicle has broken down.

The Operator has failed to refute the evidence to support this part of the claim so accepts the vehicle was broken down. Their claim under point 17 that “The Appellant’s POPLA submission raises matters which were not raised in their initial submission” is irrelevant as they failed to provide the requested information when requested:

·       Explanation of the allegation and their evidence

·       An actual photograph of the sign to be contended at the location on the material date which details the relied terms and conditions.

·       Images of the vehicle entering and exiting the car park

The operator just stated that the appeal was rejected and included the POPLA appeal code. The request for information of the photos would have shown where the car was parked, which is evidenced in the second photo (18.11) of the car can be seen reversing out of the bay. The operator will have evidence on their system that the car was stationary during this time with the boot open and an individual changing the wheel. There were at least four cars that entered and exited the car park during this time, thus this will have been picked up by the Operators’ high-tech ANPR system and will corroborate with claim of the broken down vehicle. Had the entrance and exit photos been provided at the outset of the PCN, this ground of the appeal could have been shared with the. Failure to provide this information at the outset when requested is a deliberate attempt to subvert the appeal process and appears to be a ploy scare individuals into paying ‘invoices’ when it is not applicable.  

Furthermore to refute the Operators claim that the appellant ‘parked’ is that the judge from Jopson vs Homegaurd (2016) clearly stated on the meaning of the word ‘park’. It was stated that:

Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars.

This supports the appellant’s claim that the car was not parked and that the vehicle was not left until required. The driver was coping with a vicissitude (changing a wheel in the event of a puncture) and left the site once this was resolved at 18.11.

Coupon-mad

You have six days, not seven.

ampersand

Hello ivysaur -
I'm a nasty oap grammarian, so corrections herewith, for you to ignore, of course:-)
#
In particular, this:

6) The car was not parked, but 'broken-down', due to a puncture, as evidenced in the four pieces of evidence listed:

- 1. a map showing the broken down vehicle's position... then 2,3,4..

No rebuttal or Information has been provided by the Operator to contest this evidence.

#

Have corrected and shortened all paragraphs, but you jump from para.3 to para.6:

1. The entrance signs in this carpark are inadequately positioned, being neither prominent, nor clear or legible from all parking spaces.  Further, there is insufficient notice of the sum of the parking charge itself.

The operator states, in point 28, that ‘the driver parked during the daytime; therefore all signs were perfectly visible.’ 

The time of the incident is not defined as daytime, corroborated by the exit picture (1811h) which shows the car leaving at night, after 49 minutes spent repairing the puncture. 

As the picture shows no daylight, the signs were not visible at this time, perfectly or otherwise.  This was early evening into night-time. 

The operator withheld these pictures at the outset, in a deliberate attempt to subvert the appeal process.  The daytime site photos show a lack of any suitable lighting around the carpark, especially for vehicles parked at night.

The car was located at the bottom left of the carpark, corroborated in the exit picture at 1811h, as the car reversed out of the bay. 

There are no signs at the bottom left of the carpark.  Any signs that may once have existed generally were obscured by shrubbery.  Together with an unlit carpark, it was, and still is, impossible to state that all signs were perfectly visible. 

Reviewing the pictures, the only signs that may appear visible were those located on the far side of the carpark, on a building. They would only be legible to a driver parked on that side of the car park.

To conclude, under point 26, the Operator ‘notes the Appellant’s comment that the text is too small’. 

The signage photos further evidence this, with the £100 charge in small, light blue writing virtually lost below a thick blue block. 

This text is very small and difficult to read even in daylight, and only then if its location was known and/or obvious. 

This is not comparable to the ‘Beavis case’ sign in terms of clarity and ease of eligibility of the contract terms to be entered into (Fig.1 in the Appellant’s claim). 

There is still no evidence of the entrance sign detailing the parking charge, as required when entering into a contract. How can any driver understand the terms of a contract prior to entering  the carpark?

2) No Evidence of Landowner Authority.

The Operator is put to strict proof of full compliance with the BPA Code of Practice.

Following a review of the attached CONFIRMATION OF AUTHORITY, there are inconsistencies within the document that do not corroborate with BPA Section 7.

The premises stated on the Confirmation of Authority do not corroborate with the premises detailed on the Parking Charge Notice (PCN) and the carpark signage. 

The carpark signage and PCN states CAR PARK AT LENLEYS HOME. 

The Confirmation of Authority states the premises' address as: XXXXX XXXXXXX, 33 Sandling Road; Maidstone; Kent; ME14 2RF. [Ivysaur, note 2RF shows on the scam invoice]  This is not the address of the premises that a contract is alleged to have been entered into, between the Operator and a Driver.

To conclude, the Confirmation of Authority also fails to meet the following limbs of section 7.3 BPA Code of Conduct:

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

Clarkes Furnishers is NOT the store on land where the Operator may operate, thus this element is not met. XXXXX XXXXXXX and Lenley’s Home are two completely different organisations.

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

There is insufficient information provided on the operations.  This must include details of the permit holder, how they may operate and the hours of any permitted operation.

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

This information is not included within the attached agreement.

d) No evidence on who has the responsibility for putting up and maintaining signs. 

This information is not included within the attached agreement.

e) No evidence on the definition of the services provided by each party to the agreement. 

This information is not included within the attached agreement.

As the premises detailed within the Confirmation of Authority do not corroborate with the premises details relied upon, the agent is therefore not authorised to make contracts with all or any category of visiting drivers. 

Together with the lack of information beyond this one-page Conformation of Authority, there is insufficient evidence that the operator has complied with Section 7 of the BPA Code of Practice, and thus no contract could have ever been entered into between the Driver and Operator.

Neither party was able to direct the Court to any authority on the meaning of the verb “to park”.

However, the Shorter Oxford Dictionary defines it thus: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” 

The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. 

Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars.

This supports the Appellant’s claim that the car was not parked and that the vehicle was not left until required. 

The driver was coping with a vicissitude, to whit, changing a wheel in the event of a puncture, and left the site once this was resolved at 1811h.

3) 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). 

This is a serious BPA CoP breach.

With regards to this appeal ground, the Operator states under point 23:

'Please note that our Data Protection information is printed on the signage displayed at the entrance to this private land. Our full Privacy Policy can be viewed at www.ceservice.co.uk/privacy-policy/ and our Data Protection Officer may be contacted on dataprotectionofficer@ce-service.co.uk.'

The Appellant has included a photograph of the entrance site sign which bears no reference to the google map picture. 

The information detailed on this sign is illegible and ineligible to a driver, with text too small to read.  The operator has failed to provide a corroborating photo of this sign, to confirm whether or not it is compliant with required practice. 

The only photo provided by the Operator was that of a car parking sign, which it is relying on, confirming that the Data Protection information is displayed at the entrance of the carpark. 

The Appellant refutes that there is any evidence that the compliant Data Protection Information is printed on the entrance sign, and that the Operator has provided the necessary proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. 

This, too, is a serious BPA CoP breach. 

The argument that a driver should have good eyesight to read is inconclusive if the Operator cannot provide a photo of the sign it relies upon, with text which is legible to a driver.

(Your missing or renumbered paras 4 and 5?)

Then para. 6 as detailed at the opening of this post.

Hours of darkness at time of alleged breach - remember, clocks did not go forward to BST for another fortnight.

Good luck.

Umkomaas

I acknowledge I am over the character limit and am working on the reducing the length.

I haven't the time to read the War and Peace rebuttal above, but, at a glance, it's far too long. You need it to be punchy so as to help the assessor to see the wood from the trees. You need the assessor to quickly understand the points you are making, getting them 'on your side' as soon as possible in the process

However, as far as I am aware, the character limitation has been removed by POPLA, but that's not a reason not to crop your draft down substantially.