Britannia Parking POPLA Appeal stage - advice please

Coupon-mad

Delete that point and everything about them having to prove you were driving, given that you are sure the NTK matches the compliant example in its wording.

purplefizz27

Coupon-mad said:

Delete that point and everything about them having to prove you were driving, given that you are sure the NTK matches the compliant example in its wording.

Will make those amendments and upload to POPLA tonight

Thank you

purplefizz27

Hi @KeithP and @Coupon-mad

Hoping you can help please - I've had an email from POPLA saying Britannia have uploaded their evidence to my appeal and I have 7 days to add comments to their evidence (received email on Tuesday - rushing and panicking now due to my own fault for only spotting it this morning!)

Britannia have uploaded about 60 stock images from 2023 of signage in the car park - but I still stand by the points I made re not clear/ legible/ visible from driver's POV etc. and an entrance sign isn't obvious, plus no evidence of where the car was 'parked' and/or any signage from that POV, etc. etc.

They also provided 12 photos of the kiosk that is apparently inside (to register a vehicle), which isn't relevant as we hadn't seen the signage to say this needed to be done, and a copy of a 'British Parking Associations Approved Operators Scheme, Landowner Authority' letter with a list of car park post codes, signed by Britannia Parking Group's CEO and Greene King's "Head of Estates" - is this the same thing as a landowner or can I argue? It also states 'This covers the period commencing 3rd Jan 2007 and is an ongoing agreement' and then the date next to Head of Estate's signature is March 2023...

If it's helpful I can copy Britannia's evidence statement?

I am in the process of drafting my comments, but panicking that I only have a couple of days to respond and so really appreciate any further advice in the meantime - thank you so much in advance!

Gr1pr

Lets see the Popla comments that you have written so far 

Also post a short concise list of the core details that your popla appeal was based on too

purplefizz27

Gr1pr said:

Lets see the Popla comments that you have written so far 

Also post a short concise list of the core details that your popla appeal was based on too

POPLA Appeal original points:

1. There was insufficient signage

2. The charge is disproportionate and not commercially justifiable

3. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

4. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

5. The ANPR System is Neither Reliable nor Accurate

6. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be

   used for

VERY rough draft for my comments:

In making their assessment I ask the POPLA assessor to consider the following comments in further support of my original POPLA appeal as submitted on XX.

1. Insufficient Signage

The BPA Code of Practice mentions the use of capital letters and mixing large and small font are deemed unclear as far as signage is concerned. Britannia Parking have mixed this into their signs despite the fact they appear to be new and should match the requirements of the BPA CoP.

In rebuttal to the claim by Britannia that the signage is clearly displayed, and there is signage at the car park entrance, I will refer to the BPA:CoP, which Britannia fails to comply with, despite claiming otherwise:

Section 18, paragraph 2 (S18P2)

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

And I draw your attention to this paragraph in the aforementioned Appendix B:

“The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. Any text on the sign not intended to be read from a moving vehicle can be of a much smaller size.”

Furthermore it simply would not be possible to read any of the signs in their evidence whilst in a moving car, and certainly not have read them sufficiently to have be deemed to fully understand the T&Cs to which it is alleged I agreed as the registered keeper of the vehicle. Britannia Parking’s own 'evidence' photos show the signs are way above a driver’s eye level, mounted on poles. As their signs are placed so high, Britannia have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. Britannia have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car.

Britannia have submitted numerous repetitive stock images of the car park in question from last year which just shows how small the signage is, how tiny and illegible some of the text on said signs is, and how some of the signage is hidden amongst leaves.

It is not obvious which is the entrance sign that is large enough and clear enough to get the attention of someone who is driving. It is not clear where the car was parked on the day and there is no evidence to show the POV of the driver of any signage from said parking spot at the time in question/ on the day in question. 

2. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

Britannia are stating that the Notice to Keeper was fully compliant with POFA 2012 legislation. However this is not the case. They have failed to comply with paragraph 8, section (2)(a) which very clearly states:

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

Only a time is seen on the NtK, there is no evidence of where/when the vehicle was parked (as can be seen on the submitted evidence and therefore it fails to comply with POFA 2012). They have failed to follow this piece of important legislation, resulting in no keeper liability. Therefore I, as registered keeper, cannot be held liable to this charge. BPA does not know who the driver is, and as they have failed to comply with POFA 2012, I am under no obligation to reveal who it was.

3. The charge is disproportionate and not commercially justifiable

There was no loss caused by this incident - there is no Genuine Pre-estimated of Loss breakdown included to show how Britannia Parking have come up with £100, in a car park that is otherwise free. 

In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid, anything else was deemed a penalty, and in my case this was a free car park with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.  

I point the POPLA adjudicator to the follows verdicts from past  adjudications:

POPLA Assessor Chris Adamson has stated in June 2014 in response to VCS adjudication and GPEOL that:

'I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”

“...I am unable to see how the parking charge amount has been calculated. […] As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs […] In consideration of all the evidence before me, I find that the operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.”

4. The ANPR System is Neither Reliable nor Accurate
I refer to Section 20, Paragraph 5 (S20P5) of the BPA:CoP:

“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

With this in mind, i refer to the photographic evidence that Britannia Parking has provided.

The photographs provided does not show a vehicle with the registration of [REDACTED] parked in the car park, instead, it shows the vehicle driving. The provided photographic evidence does not establish context, or specific location, so there is no way to establish context of this image of the vehicle, it could have been captured from anywhere, from any ANPR system that Britannia has access to.

Britannia imply that they check the ANPR system of this carpark regularly yet have not produced evidence from it that meets the standards of the the BPA:CoP, specifically S20P5. As mentioned in my initial appeal - I reiterate that the ANPR System is Neither Reliable nor Accurate:

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Britannia have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that Britannia Parking 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 this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

5. Furthermore, there seems to be no valid copy of a contract included between Britannia Parking and the Car Park. The BPA Approved Operators Scheme, Landowner Authority letter provided as evidence is an ‘ongoing agreement’ from Jan 2007 and has not been signed by the landowner, but rather a managing agent of the site (Greene King ‘Head of Estates’). No further evidence has been submitted to confirm that this managing agent have the authority to act on the behalf of the landowner, especially with regards to entering into long-term contracts with 3rd party companies. 

In light of all above points, I respectfully request that my appeal be upheld and the charge dismissed.

(I have used quotes etc. from other examples shared in here - still editing so apologies if any mistakes... unsure if 2014/ 2013 examples are now irrelevant?)

Gr1pr

1) overly long, keep your rebuttals as short and concise as possible 

2) it's not BPA, presumably you meant Britannia. ). ( BPA is the British Parking Association. )

3)  not applicable since the 2015 Beavis case 


Note, the following points are the most likely to win appeals 

No landowner authority 
Poor and inadequate signage 
POFA failures 
BPA CoP failures 

Study their massive evidence pack, find any flaws based on the usual points I mentioned 

You cannot introduce new evidence or arguments, you must've rebut their pack at every opportunity that presents itself, mainly concentrating on few core points that I mentioned 

purplefizz27

Gr1pr said:

1) overly long, keep your rebuttals as short and concise as possible 

2) it's not BPA, presumably you meant Britannia. ). ( BPA is the British Parking Association. )

3)  not applicable since the 2015 Beavis case 


Note, the following points are the most likely to win appeals 

No landowner authority 
Poor and inadequate signage 
POFA failures 
BPA CoP failures 

Study their massive evidence pack, find any flaws based on the usual points I mentioned 

You cannot introduce new evidence or arguments, you must've rebut their pack at every opportunity that presents itself, mainly concentrating on few core points that I mentioned 

Thank you

Can I check, I'm right in mentioning the 'landowner authority' point when the signature is from 'head of estates' instead of landowner?

Also, which point is not applicable since Beavis - do you mean I should take out 'The charge is disproportionate and not commercially justifiable' altogether?

Gr1pr

The authority should flow from the landowner, possibly via intermediaries etc, to the parking company 

Yes I do mean that whole ancient paragraph in bold, due to the result in the Beavis case 9 years ago 

purplefizz27

Gr1pr said:

The authority should flow from the landowner, possibly via intermediaries etc, to the parking company 

Yes I do mean that whole ancient paragraph in bold, due to the result in the Beavis case 9 years ago 

Appreciate your help, thank you!

Is this still too long, or do you have any other suggestions please?

In making their assessment I ask the POPLA assessor to consider the following comments in further support of my original POPLA appeal as submitted on XX.

1. Poor and inadequate signage

Britannia have submitted numerous repetitive stock images of the car park in question from 2023, photos that show how small the signage is, how tiny and illegible some of the text on said signs is, and how some of the signage is hidden amongst leaves. The BPA Code of Practice mentions the use of capital letters and mixing large and small font are deemed unclear as far as signage is concerned, and the evidence provided by Britannia shows a mix of large and small font with use of capital letters. 

It is not obvious which is the entrance sign (that should be large enough and clear enough to get the attention of someone who is driving/ clearly explain the risk of £100 charge), and it is not clear where the car was parked on the day to be able to provide evidence to show the driver’s point of view of any signage from said parking spot at the time in question/ on the day in question. 

POFA 2012 defines 'adequate notice' as follows: “[…]the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land”. The photographic evidence provided by Britannia of what I assume to be the ‘main’ sign at the entrance simply states “Camera Controlled” which is NOT sufficient to bring the parking charge (i.e. the sum of £100 itself) to the attention of the motorist, therefore not adequate notice. 

Additionally, it simply would not be possible to read the tiny T&Cs on the signs in their evidence whilst in a moving car, and certainly not have read them sufficiently to have be deemed to fully understand the T&Cs to which it is alleged I agreed as the registered keeper of the vehicle. Britannia Parking’s own 'evidence' photos show the signs are way above a driver’s eye level, mounted on poles, and not visible from all spaces in the car park.

2. NtK does not meet PoFA 2012 requirements (No Evidence of Period Parked)

Britannia are stating that the Notice to Keeper was fully compliant with POFA 2012 legislation, however, this is not the case. They have failed to comply with paragraph 8, section (2)(a), which very clearly states:

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

Only a time is seen on the NtK, there is no evidence of where/when the vehicle was parked (as can be seen on the submitted evidence and therefore it fails to comply with POFA 2012). They have failed to follow this piece of important legislation, resulting in no keeper liability. Therefore I, as registered keeper, cannot be held liable to this charge.

3. BPA CoP failure (The ANPR System is Neither Reliable nor Accurate)

I refer to Section 20, Paragraph 5 (S20P5) of the BPA CoP:

“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

With this in mind, I refer to the photographic evidence that Britannia Parking has provided. The photographs provided do not show a vehicle with the registration of [REDACTED] parked in the car park, instead, it shows the vehicle whilst driving. The provided photographic evidence does not show context or specific location, so there is no way to establish context of this image of the vehicle… it could have been captured from anywhere, from any ANPR system that Britannia has access to.

Britannia imply on their signage in provided evidence that they check the ANPR system of this car park regularly, yet they have not produced evidence that it meets the standards of the the BPA:CoP, specifically S20P5. As mentioned in my initial appeal - I reiterate that the ANPR System is Neither Reliable nor Accurate.

Britannia Parking is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Britannia have failed to clearly inform drivers about the cameras and what the data will be used for, and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

I question the entire reliability of the system. I require that Britannia Parking 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 this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Furthermore, there seems to be no Landowner Authority - there is no valid copy of a contract included in the evidence. The ‘BPA Approved Operators Scheme, Landowner Authority’ letter provided as evidence is an ‘ongoing agreement’ from Jan 2007 and has not been signed by the landowner, but rather a managing agent of the site (Greene King ‘Head of Estates’). No further evidence has been submitted to confirm that this signatory has the authority to act on the behalf of the landowner, especially with regards to entering into long-term contracts with 3rd party companies. 

In light of all above points, I respectfully request that my appeal be upheld and the charge dismissed.

Coupon-mad

Far too long, if that's POPLA Comments. 

You are not allowed to appeal all over again, which is what a long response looks like to an Assessor. Just do a handful of bullet points.