LIDL SOUTHAMTON - 84 YEAR OLD DRIVER / NEED TO APPEAL

Jason.rangou

Dear POPLA,
PCN Number: xxx
POPLA Verification Code: xxx

I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the Parking Charge Notice (PCN) issued by ParkingEye Ltd. On the grounds of the below:

I wish to point out that I am 84 years old, I have mobility issues, for which I am currently seeing a specialist at Southampton hospital and receiving ongoing treatment.  I also have learning difficulties. I like to browse the aisles and to talk people also whilst in Lidl. I spend a lot of time in Lidl because it takes time for me to do my shopping and when I get to the checkout, it takes time for me to pack everything up. I shop in LIDL regularly and have provided copies of the receipts to show this. 

1. No period of grace given for the driver as per Equality Act 2010

2. ANPR Accuracy and Compliance
3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

4. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time (night, raining).

5. No evidence of Landowner Authority

1. No period of grace given for the driver to read the signs within the car park and pay for ticket and no grace period was given for the group to safely exit the car park afterwards.

The BPA Code of Practice (13.1) states 'The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave,
before the driver can be bound by your parking contract' The amount of time in these instances will vary dependant
on site size and type but it must be a minimum of 5 minutes.

(13.3) Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.

The driver of the car at the time was supposedly captured by ANPR cameras driving in to the car park at 19/02/24 14:45 and driving out at 17:11 on the same date The driver was unaware that parking time began from entry to the car park.

The driver returned to the car park after doing his shopping.  It is very clear from the evidence that Parkingeye have failed to uphold the minimum grace periods as per EQUALITY ACT 2010 'due to the fact the driver is elderly, has learning difficulties and has protected characteristics under the Equality Act 2010 and that Parkingeye and the Landowner have a statutory duty to allow additional time for such visitors. I ask the ECP to review this evidence and drop out/cancel this PCN by offering 'no contest' in this POPLA process, given the disability/mobility issues. If not I will have no option other than to take this as disability discrimination with the supermarket and indeed raise this with my local MP. 

 

In additon The new statutory Code of Practice, released by Government on 7th February 2022. requires operators to adhere to the Equality Act 2010 and the EHRC statutory Code of Practice for Service Providers, and specifically has a section about accessibility that reminds operators that there are invisible disabilities that are not just about providing special wider bays, but also additional time where needed

2. ANPR Accuracy and Compliance

I require ParkingEye 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 ParkingEye 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.

So, in addition to showing their maintenance records, I require ParkingEye Ltd in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

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.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

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.


3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

4. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time (night, raining).

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The alleged breach occurred on a rainy night and the signs were not visible (readable) or illuminated to be seen by any driver entering the car park at that time of the day; the car park itself was not illuminated as the public lighting was off. These are not mitigating circumstances but failure by ParkingEye plus to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are visible at the time of darkness.

The BPA Code of Practice, Appendix B, under Contrast and illumination:

Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective. Clearly none of these conditions were met (see attached photographs of non-bpa-compliant, non-obvious signage).

Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. ParkingEye did not provide me with evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.

5. No evidence of Landowner Authority

As ParkingEye Ltd 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 ParkingEye 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 CoP) 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).

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

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Jason.rangou

Coupon-mad said:

Not that it matters:

1. the Keeper was driving;

2. If they live in the Southampton court area then this claim will get nowhere with those canny Judges!

Can I please ask you to take a final look at my POPLA appeal above, and let me know if I missing anything or if its ready to send? Thank you

1505grandad

"I write to you as the registered keeper of the vehicle ...."
"I wish to point out that I am 84 years old, I have mobility issues, for which I am currently under Southampton hospital and I have learning difficulties.."
"...periods as per EQUALITY ACT 2010 'due to the fact the driver has learning difficulties and has protected characteristics ..."

"2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge."

The driver has obviously been id'd so POFA not applicable

Also as the parking event is 19/02/24 you should be using/quoting BPA CoP version 9 dated 1.2.2024 the grace etc periods para/wording is different)
https://www.britishparking.co.uk/write/Documents/AOS/NEW Redesigned Documents/Version91.2.2024Highlight.pdf

Grumpy_chap

Jason.rangou said:

He doesn't have a blue badge unfortunately. Back in his day people with autism were just treated as quirky and a bit wierd. When we went to the Dr a few years ago to get him diagnosed , they said it wouldn't be worth going through it now. So we don't have a blue badge or formal diagnosis. That said I will do what you have said. Thank you 

Whether or not the autism is formally diagnosed, you have described your father as having mobility issues.  These may be sufficient for a Blue Badge without consideration of other factors.  That may be a far lower hurdle for eligibility.

KeithP

In point 4 you mention Unfair Terms in Consumer Contract Regulations 1999.

These regulations were replaced in 2015 - nine years ago - by The Consumer Rights Act 2015.

One wonders where you found this old text?

Jason.rangou

KeithP said:

In point 4 you mention Unfair Terms in Consumer Contract Regulations 1999.

These regulations were replaced in 2015 - nine years ago - by The Consumer Rights Act 2015.

One wonders where you found this old text?

Hours of scanning the POPLA newbie thread. Now I am at acomplete loss. Just when I thought I was getting somewhere.

Jason.rangou

Grumpy_chap said:

Jason.rangou said:

He doesn't have a blue badge unfortunately. Back in his day people with autism were just treated as quirky and a bit wierd. When we went to the Dr a few years ago to get him diagnosed , they said it wouldn't be worth going through it now. So we don't have a blue badge or formal diagnosis. That said I will do what you have said. Thank you 

Whether or not the autism is formally diagnosed, you have described your father as having mobility issues.  These may be sufficient for a Blue Badge without consideration of other factors.  That may be a far lower hurdle for eligibility.

Yes we have reapplied now thank you . fingers crossed.

Jason.rangou

1505grandad said:

"I write to you as the registered keeper of the vehicle ...."
"I wish to point out that I am 84 years old, I have mobility issues, for which I am currently under Southampton hospital and I have learning difficulties.."
"...periods as per EQUALITY ACT 2010 'due to the fact the driver has learning difficulties and has protected characteristics ..."

"2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge."

The driver has obviously been id'd so POFA not applicable

Also as the parking event is 19/02/24 you should be using/quoting BPA CoP version 9 dated 1.2.2024 the grace etc periods para/wording is different)
https://www.britishparking.co.uk/write/Documents/AOS/NEW Redesigned Documents/Version91.2.2024Highlight.pdf

As I said I copied and pasted it from hours of searching. I am starting to lose hope now to be honest. Its too complicated for me.

nopcns

Just search the POPLA thread for more recent cases. No need to go back more than a year.

Le_Kirk

I wish to point out that I am 84 years old, I have mobility issues, for which I am currently under Southampton hospital and I have learning difficulties. I like to browse the aisles and talk to people also whilst in Lidl. I spend a lot of time in Lidl because it takes time for me to do my shopping and when I get to the checkout, it takes time for me to pack everything up.

You might like to choose a different phrase than being under Southampton hospital.  Also add "to" as shown.