Baysentry Solutions POPLA Appeal Won!

ryandanielsim

Below is the appeal that I used to win against Baysentry who claimed: "Vehicles must be parked within a marked parking bay as stated in the terms and conditions. This vehicle was not parked within a marked parking bay."

Dear Sir/Madam,

I am writing to formally appeal against the Parking Charge Notice (PCN) ______ issued by BaySentry Solutions on _____ for an alleged parking violation. I strongly believe that the charge is unjustified and should be cancelled for the following reasons:

1. Inadequate and Ambiguous Signage: The signage in the car park fails to meet the requirements set forth by the British Parking Association Code of Practice.

The signs are not prominent, clear, or legible from all parking spaces, thereby failing to provide drivers with sufficient notice of the parking charges and terms and conditions associated with parking in the area. The lack of clear information prevents drivers from making an informed decision about parking and understanding the consequences of their actions.

The signage at the parking location was inadequate and ambiguous, thereby failing to meet the legal requirements outlined in the Consumer Rights Act 2015 and the British Parking Association's Code of Practice.

The Car Park had confusing, unclear, ambiguous, inadequate signage and insufficient information so is not compliant with the BPA Standards and creating unreasonable and unfair terms so no contract is formed with Baysentry Solutions and therefore no agreement to pay £100.

I believe the signs that Baysentry Solutions are relying on at Urban Exchange were confusing and misleading, the small print is too small for anyone to see read. The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B. It is against the BPA Code of Practice requiring signage to be ample and visible. The signs are also so high that terms would only be legible if a driver got out of the car and climbed a stepladder to try to read them. In any photos supplied by Baysentry Solutions in evidence I require them to state the height of each sign. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.

 

18) Signs

18.1) A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.

18.3) 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.

Furthermore, According to the Consumer Rights Act 2015, Schedule 2, Part 2, Paragraph 8, any contractual terms contained on signage must be transparent and legible, ensuring that consumers are made aware of the terms before entering into a contract. Furthermore, the British Parking Association's Code of Practice, Section 18.1, states that signs must be clear and legible, with terms that are transparent and easy to understand.

Upon visiting the parking location, I noticed several deficiencies in the signage that cast doubt on the validity of the parking enforcement:

1.     Inadequate Signage Placement: The signs were positioned in a manner that made them difficult to read and understand. While others were placed too high or at an angle that made them hard to notice. These factors created confusion and failed to provide clear information about the parking terms and conditions.

2.     Insufficient Signage Quantity: The number of signs at the location was inadequate to ensure reasonable visibility and awareness of the parking restrictions. The limited presence of signs made it challenging for drivers to familiarize themselves with the terms and conditions, leading to a lack of informed consent regarding any alleged contract formed.

3.     Lack of Clarity in Signage Content: The wording on the signage was ambiguous and open to interpretation. The language used was overly complex and not presented in a manner that a reasonable person could easily comprehend. The absence of clear and unambiguous instructions further contributes to the confusion surrounding the parking regulations.

 

2. Non-Existent Designated Marked Bays: The notice to driver and my Baysentry Solutions appeal claim that my vehicle was not parked in designated clearly marked bays.

However, the  designated marked bays were faded and not clear in nature, in the car park at the time of the alleged violation. The poor condition and lack of maintenance of the car park made it impossible to identify any designated parking areas. The absence of clear markings and the overall state of the car park create confusion and ambiguity for drivers, making it difficult to comply with any parking regulations that may exist.

It is mandatory for parking facilities to provide clearly marked bays that meet the specified dimensions and requirements. The absence of designated markings not only violates these legal provisions but also jeopardizes the safety and convenience of all users. Additionally, the lack of proper markings inhibits the effective enforcement of parking regulations, making it difficult for parking attendants or authorities to monitor and regulate parking activities adequately.

 

 

3. Failure to Demonstrate Driver Liability: The operator, BaySentry Solutions, has failed to demonstrate that the individual they are pursuing is indeed the driver who may have been potentially liable for the charge.

As the registered keeper of the vehicle, I am under no legal obligation to name the driver, and the operator cannot assume liability without providing evidence of the driver's identity. The lack of evidence and failure to establish the identity of the driver further undermines the validity of 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. 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. 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/

 

4. Baysentry Solutions have no Standing or Authority to pursue charges nor form parking contracts

Baysentry Solutions have no Standing or Authority to form parking contracts or enforce them in court in their own name Baysentry Solutions have no authority to issue parking contracts nor to pursue to court as required in the BPA code of practice. The Baysentry Solutions Contract should be with the Landowner and not a company leasing the land. Baysentry Solutions must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

7 Written authorisations of the landowner

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

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

7.4 Our compliance team are responsible for making sure that you follow the Code. If the team give you reasonable notice, you must allow our appointed manager to inspect the landowner’s written authorisation.

5. Disproportionate Penalty Amount: The amount demanded by BaySentry Solutions is a penalty and is grossly disproportionate to any legitimate interest.

This is a paid car park with no such commercial justification for a high penalty charge. The charge of £100 is arbitrary and unjustifiable, as BaySentry Solutions has not provided a breakdown of costs incurred or demonstrated a genuine pre-estimate of loss. The charge appears to be an attempt to extract an unreasonable and unfair sum from motorists, rather than a reasonable reflection of any actual damages or losses suffered.

Based on the aforementioned points, I kindly request that POPLA undertakes a thorough review of this appeal and cancels the Parking Charge Notice issued by BaySentry Solutions. The operator has failed to provide sufficient evidence of liability, the signage is inadequate and does not form a valid contract, and the amount charged is a disguised penalty without any reasonable justification. I trust that POPLA will conduct an objective and fair assessment of the facts in this case.

I appreciate your attention to this matter and I look forward to your response and a favorable resolution. Should my appeal be unsuccessful, I kindly request information on the next steps available for further escalation.