POPLA Appeal - £100 fine for spending 14 mins in Margate lido 2 parkingeye car park

Nsc93230

Hello.

My wife got a parking ticket from parking eye for being there for 14 mins. We had recently left a car park down the road that we paid for all night- if we would have seen the signs that we needed to pay, we would have purchased another ticket. Due to poor signage and it being dark, we didn’t pay but my wife didn’t even get out of the car. We waiting for a few friends to jump in from a bar down the road.

i am the keeper of the car but not pictured as the driver in the NTK. I have already appealed to parking eye, not naming who the driver was, and they have refused my appeal and said I can either pay or appeal to POPLA. 

I would appreciate a check on this to see if there is anything else I should add considering they do not know who the driver was still.

considering it was dark when we were there - should I get pictures at night to submit? Or will Google maps pictures suffice? (We don’t live in the area)

——-

Dear POPLA,

 

On the 22 June 2024 ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”

 

As the appellant I wish to refute these charges on the following grounds:

 

I.              Consideration Period: BPA Code of Practice – Non-Compliance

II.            No Evidence of Period Parked 

III.           Poor and inadequate signage

IV.           No evidence of Landowner Authority

 

I.              Insufficient consideration period

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 00:08:59 and driving out at 00:23:10 on the same date.

The driver decided not to park at this location due to confusing signage and poor condition of the car park tarmac – therefore no parking event has occurred.

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”

It is therefore argued that the duration of the alleged ‘parking’ in question (which ParkingEye claim was 14 minutes ) is not an unreasonable consideration period, given:

The ANPR records the “arrival time” at the point when the vehicle is alleged to be entering the car park and does not show if the car park is busy. While waiting for others to park this would reasonably cause the driver to spend several minutes finding a suitable parking space before parking the car, locating the signs, reading and attempting to understand them, checking the payment methods that can be used, ensuring correct coins and obtaining a ticket.

The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question and the impact of that upon time taken to locate signage prior to entering into a contract.

The lengthiness of ParkingEyes’ signage (in terms of word count) all written in tiny text the across of the sign [refence X]

 

II.            No Evidence of Period Parked

The ANPR system in LIDO 2 Margate can only register entry and exit times, ParkingEye are not able to definitively state 

I.              That the car was indeed parked

II.            The period that the car was parked.

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was actually parked. If ParkingEye are unable to prove if the driver did park, there can be no breach of contract.

29.4 of the BPA CoP states the notice must specify “ the period of parking to which the notice relates”. The notice in question states “time in car park”, not period of actual parking. 

Given that ParkingEye is charging £100 for 14 minutes of parking, even a small error in the period of time parked could have a material impact on the amount of the charge.

 

III.           Poor and inadequate signage

There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces.

BPAs CoP 19.2 states “you must also have a standard form of entrance sign at the entrance to the parking area”

Per Appendix B of the BPA CoP “A standard form of entrance sign must be placed at the entrance to the parking area.”

Lido 2 Margate lacks any kind of clear entrance sign [reference X], therefore there is insufficient signage to allow the driver to decide whether parking in the car park would breach any contract. 

In fact, it is impossible to read any of the signs before entering the car park and being photographed by the ANPR system, at which point ParkingEye presumes you have entered into a contract.

There is no visible signage containing the terms and conditions at only available payment machine on the car park. The sign that is there, is unremarkable and does not mention any potential parking charge or the fact the motorist is entering into a contract.

IV.          No evidence of Landowner Authority

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).

LDast

Without seeing the NTK, it may be worthwhile including no keeper liability as PE NtKs do not include the requirements of PoFA 9(2)(a)(i) and then include the point that they have not evidenced that the person they are pursuing is the driver.

Explain the PoFA failure to the POPLA assessor like this:

PoFA 9(2)(e)(i) failures

Schedule 4, Paragraph 8(2)(e)(i) of PoFA 2012

This paragraph mandates that for a parking operator to hold the vehicle's registered keeper liable for a parking charge, the Notice to Keeper (NtK) must include:

An "Invitation to Pay": The notice must explicitly invite the keeper to pay the unpaid parking charges.

Exact Wording: The wording must clearly convey this invitation and mere implication or indirect suggestions are insufficient. The act requires strict compliance, meaning that any failure to fully incorporate this invitation renders the notice non-compliant with the requirements of PoFA 2012.

Non-Compliance Issue

If the NtK fails to include a clear "invitation to pay", or any synonym of the word "invitation", this omission is a breach of Schedule 4, Paragraph 9(2)(e)(i). Even if the notice suggests that payment is required, without an explicit invitation directed towards the keeper to settle the charge, the notice does not meet the exacting requirements of PoFA 2012.

Significance of Full Compliance

Strict Liability: The law mandates full and exact compliance with the specified wording and content outlined in PoFA 2012.

Partial or Substantial Compliance Insufficient: Even if the notice largely complies with other requirements, the absence of a clear invitation to the keeper to pay is a significant flaw. The operator cannot rely on partial or even substantial compliance — every element as specified in the legislation must be present and correct.

Consequences for the Operator

Challenge Basis: If the notice is found to lack this crucial element, it can be used as a basis to challenge the parking charge.

Keeper Liability: The operator cannot transfer liability to the keeper, which significantly weaken their case if the notice to the driver or other requirements are also flawed or if the driver is unknown.

Conclusion

In summary, a PCN that does not include an explicit "invitation" for the keeper to pay the charge is not fully compliant with Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012. Since the law demands strict adherence, any omission, even if minor, invalidates the notice and relieves the keeper of any obligation to pay. This should be raised in any appeal or legal response to the charge.

Nsc93230

LDast said:

Without seeing the NTK, it may be worthwhile including no keeper liability as PE NtKs do not include the requirements of PoFA 9(2)(a)(i) and then include the point that they have not evidenced that the person they are pursuing is the driver.

Explain the PoFA failure to the POPLA assessor like this:

PoFA 9(2)(e)(i) failures

Schedule 4, Paragraph 8(2)(e)(i) of PoFA 2012

This paragraph mandates that for a parking operator to hold the vehicle's registered keeper liable for a parking charge, the Notice to Keeper (NtK) must include:

An "Invitation to Pay": The notice must explicitly invite the keeper to pay the unpaid parking charges.

Exact Wording: The wording must clearly convey this invitation and mere implication or indirect suggestions are insufficient. The act requires strict compliance, meaning that any failure to fully incorporate this invitation renders the notice non-compliant with the requirements of PoFA 2012.

Non-Compliance Issue

If the NtK fails to include a clear "invitation to pay", or any synonym of the word "invitation", this omission is a breach of Schedule 4, Paragraph 9(2)(e)(i). Even if the notice suggests that payment is required, without an explicit invitation directed towards the keeper to settle the charge, the notice does not meet the exacting requirements of PoFA 2012.

Significance of Full Compliance

Strict Liability: The law mandates full and exact compliance with the specified wording and content outlined in PoFA 2012.

Partial or Substantial Compliance Insufficient: Even if the notice largely complies with other requirements, the absence of a clear invitation to the keeper to pay is a significant flaw. The operator cannot rely on partial or even substantial compliance — every element as specified in the legislation must be present and correct.

Consequences for the Operator

Challenge Basis: If the notice is found to lack this crucial element, it can be used as a basis to challenge the parking charge.

Keeper Liability: The operator cannot transfer liability to the keeper, which significantly weaken their case if the notice to the driver or other requirements are also flawed or if the driver is unknown.

Conclusion

In summary, a PCN that does not include an explicit "invitation" for the keeper to pay the charge is not fully compliant with Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012. Since the law demands strict adherence, any omission, even if minor, invalidates the notice and relieves the keeper of any obligation to pay. This should be raised in any appeal or legal response to the charge.

Oh my gosh thank you so much!!
Do i literally just copy and paste that? 

This is the original NTK

[Image removed by Forum Team]

LDast

As part of your POPLA appeal, you can use whatever you want to make your point. However, you are not dealing with assessors who are particularly well trained in legal matters. In fact, you could get the tea-boy doing your assessment on the day. Who knows?

It is unlikely that that is a winning point at POPLA but you never know. It is an argument that has legs and after discussing it with a district judge, he agreed with me that when considering the requirements of PoFA, that point would invalidate any keeper liability.

You'll require other points too. Belt and braces. Whilst PE were the successful party in the infamous Beavis case, not all their signs are quite as clear and obvious as the one in that case. You would argue signage in any POPLA appeal. Lack of prominence, adequacy when informing the motorist of the charge for breaching any terms and so on. For example, they have not stated in the NtK, what the appropriate parking time that should have been purchased was or what was the permitted time in the car park.

Even if this were not to be successful at POPLA, that doesn't matter. If/when they decide to make a claim, they will either do so themselves and add a fake charge to the original PCN amount or if they are really unsure about their chances of winning a claim, they will give it to the bottom-dwelling DCB Legal to act on their behalf and that is an almost 100% guarantee that it will eventually be discontinued.

Nsc93230

Okay so I can just add to the bottom of my draft:

The initial notice to keeper also fails to include the requirements of PoFA 9(2)(a)(i) (detailed below) nor have they evidenced that the person being pursued is the driver.

PoFA 9(2)(e)(i) failures

Schedule 4, Paragraph 8(2)(e)(i) of PoFA 2012

This paragraph mandates that for a parking operator to hold the vehicle's registered keeper liable for a parking charge, the Notice to Keeper (NtK) must include:

An "Invitation to Pay": The notice must explicitly invite the keeper to pay the unpaid parking charges.

Exact Wording: The wording must clearly convey this invitation and mere implication or indirect suggestions are insufficient. The act requires strict compliance, meaning that any failure to fully incorporate this invitation renders the notice non-compliant with the requirements of PoFA 2012.

Non-Compliance Issue

If the NtK fails to include a clear "invitation to pay", or any synonym of the word "invitation", this omission is a breach of Schedule 4, Paragraph 9(2)(e)(i). Even if the notice suggests that payment is required, without an explicit invitation directed towards the keeper to settle the charge, the notice does not meet the exacting requirements of PoFA 2012.

Significance of Full Compliance

Strict Liability: The law mandates full and exact compliance with the specified wording and content outlined in PoFA 2012.

Partial or Substantial Compliance Insufficient: Even if the notice largely complies with other requirements, the absence of a clear invitation to the keeper to pay is a significant flaw. The operator cannot rely on partial or even substantial compliance — every element as specified in the legislation must be present and correct.

Consequences for the Operator

Challenge Basis: If the notice is found to lack this crucial element, it can be used as a basis to challenge the parking charge.

Keeper Liability: The operator cannot transfer liability to the keeper, which significantly weaken their case if the notice to the driver or other requirements are also flawed or if the driver is unknown.

Conclusion

In summary, a PCN that does not include an explicit "invitation" for the keeper to pay the charge is not fully compliant with Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012. Since the law demands strict adherence, any omission, even if minor, invalidates the notice and relieves the keeper of any obligation to pay. This should be raised in any appeal or legal response to the charge.

LDast

In your POPLA appeal, you list all the points you ar going to argue and then expand on each point in turn. What I gave you regarding PoFA 9(2)(e)(i) is a précis and if you read it carefully, you will see that it is not to be copied and pasted as is because it contains advice on what YOU should do, not what the assessor should do.

For example, your first point could be about the failure to comply with all the requirements of PoFA to be able to hold the keeper liable and the second point could be about how the operator has not evidenced that the person they are pursuing is the driver. One point leads to another.

Coupon-mad

I would make unlit signage in the dark your first point.  State that ParkingEye must show photos of the signs in hours of darkness if they are to refute this point.

State that you were not the driver but attach proof that the driver gained no amenity from this site because they had paid for another car park all night (evidence attached) and merely passed through this site. 

Nsc93230

[Image removed by Forum Team]



[Image removed by Forum Team]

Hello-

i appealed and parking eye have come back with loads of ‘evidence’ and I have the opportunity to comment on it before POPLA review.

images attached.

I mentioned already that it was pitch black when we drove in - all of the signage they have supplied images for have no lights by them plus the images are date stamped but outdated - I don’t think half of them are there but would have to drive back to check and we don’t live close.
on top of that,  I have only just realised but they have even got the make / model of our car wrong! It was so dark they can’t even see that

Any guidance on how best to reply is greatly appreciated. 

Nsc93230

So to recap:

i disputed the fine with parking eye because the keeper was not driving:
—

I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner. There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual

photograph of the sign you contend was at the location on the material date as well as your images of the vehicle. If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it. If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner.

——
they declined the appeal, so I was told to appeal through POPLA 

This was the most recent appeal that promtd that lengthly response:
—

Dear POPLA,

 

On the 22 June 2024 ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”

 

As the appellant I wish to refute these charges on the following grounds:

 

I.              Consideration Period: BPA Code of Practice – Non-Compliance

II.            No Evidence of Period Parked 

III.           Poor and inadequate signage

IV.           No evidence of Landowner Authority

V.           The initial notice to keeper also fails to include the requirements of PoFA 9(2)(a)(i) nor have they evidenced that the person being pursued is the driver.

I.              Insufficient consideration period

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 00:08:59 and driving out at 00:23:10 on the same date.

The driver decided not to park at this location due to confusing signage and poor condition of the car park tarmac – therefore no parking event has occurred.

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”

It is therefore argued that the duration of the alleged ‘parking’ in question (which ParkingEye claim was 14 minutes ) is not an unreasonable consideration period, given:

The ANPR records the “arrival time” at the point when the vehicle is alleged to be entering the car park and does not show if the car park is busy. While waiting for others to park this would reasonably cause the driver to spend several minutes finding a suitable parking space before parking the car, locating the signs, reading and attempting to understand them, checking the payment methods that can be used, ensuring correct coins and obtaining a ticket.

The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question and the impact of that upon time taken to locate signage prior to entering into a contract.

The lengthiness of ParkingEyes’ signage (in terms of word count) all written in tiny text the across of the sign [refence X]

 

II.            No Evidence of Period Parked

The ANPR system in LIDO 2 Margate can only register entry and exit times, ParkingEye are not able to definitively state 

I.              That the car was indeed parked

II.            The period that the car was parked.

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was actually parked. If ParkingEye are unable to prove if the driver did park, there can be no breach of contract.

29.4 of the BPA CoP states the notice must specify “ the period of parking to which the notice relates”. The notice in question states “time in car park”, not period of actual parking. 

Given that ParkingEye is charging £100 for 14 minutes of parking, even a small error in the period of time parked could have a material impact on the amount of the charge.

 

III.           Poor and inadequate signage

There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces.

BPAs CoP 19.2 states “you must also have a standard form of entrance sign at the entrance to the parking area”

Per Appendix B of the BPA CoP “A standard form of entrance sign must be placed at the entrance to the parking area.”

Lido 2 Margate lacks any kind of clear entrance sign [reference X], therefore there is insufficient signage to allow the driver to decide whether parking in the car park would breach any contract. 

In fact, it is impossible to read any of the signs before entering the car park and being photographed by the ANPR system, at which point ParkingEye presumes you have entered into a contract. 

There is no visible signage containing the terms and conditions at only available payment machine on the car park. The sign that is there, is unremarkable and does not mention any potential parking charge or the fact the motorist is entering into a contract.

In addition, the ticket was issued in the middle of the night in pitch black(evidenced in the ANPR pictures), no street lights near the entrance to see anything let alone read an imaginary sign.  I require ParkingEye must show photos of the signs in hours of darkness if they are to refute this point.

IV.          No evidence of Landowner Authority

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).

V. Lastly, the initial notice to keeper also fails to include the requirements of PoFA 9(2)(a)(i) nor have they evidenced that the person being pursued is the driver. 

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for 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. 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 Notice To Keeper.

 

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 'Notice To Keeper' 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 LDK Security Group 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.

(In addition to all this, I was not the driver but attached is proof that the driver gained no amenity from this site because they had paid for another car park all night (evidence attached) and merely passed through this site.)

Sincerely

Castle

Stour Side Investments Limited was dissolved on 20th December 2022.
STOUR SIDE INVESTMENTS LIMITED filing history - Find and update company information - GOV.UK (company-information.service.gov.uk)

1505grandad

"The burden of proof rests with LDK Security Group to show........"?

Always check that any c & p is relevant to your case.