First Parking PCN - disabled passenger

Cute_Doggos

Appeal Regarding POPLA Code: […] v First Parking LLP

 

Vehicle Registration: […]

POPLA Reference: […]

 

I, the registered keeper of this vehicle, received a letter dated [..] acting as a notice to the registered keeper. My appeal to the operator – First Parking LLP – was submitted and subsequently rejected by an email dated [...]. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1.      Disability Discrimination: Equality Act 2010 – non-compliance;

2.      Lack of Disabled Bays: Development Control Advice Note 11 – non-compliance;

3.      Unenforceable Terms: Consumer Rights Act 2015 – non-compliance;

4.      Inadequately Positioned and Lit Signage: BPA Code of Practice – non-compliance;

5.      No Evidence of Period Parked: Stopping vs Parking;

6.      Absence of Surface Markings: BPA Code of Practice – non-compliance;

7.      Grace Period: BPA Code of Practice – non-compliance;

8.      No Evidence of Landowner Authority: BPA Code of Practice – no strict proof of full compliance;

9.      No Evidence of Period Parked – Notice to Keeper does not meet PoFA 2012 requirements;

10.   The ANPR System is Neither Reliable nor Accurate;

11.   No Evidence of Entitlement to Levy Charges without Consideration.

 

 

1. Disability Discrimination: Equality Act 2010 – non-compliance

The vehicle in question was transporting a disabled passenger with protected characteristics under the Equality Act 2010, as acknowledged by the passenger’s status as a Blue Badge holder, amongst other indicators.

 

The BPA Code of Practice (4) states that: “Where parking is being provided as a service, parking operators need to have regard to the obligations placed upon them by the Equality Act 2010 and the EHRC statutory code, in particular to make reasonable adaptations to accommodate disabled people. […] people with other disabilities might reasonably need longer consideration period and grace periods […] Recognition of these obligations is important in the consideration of appeals.”

 

Under the Equality Act 2010 (4), disability is defined as a protected characteristic. The Equality Act 2010 (6.1) further adds that: “A person (P) has a disability if— (a) P has a physical or mental impairment, and; (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

 

The Equality Act 2010 (13, 19 and 26) identifies the forms of discrimination against a protected characteristic, directly relevant to this appeal. Section 13.1 states: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”, constituting direct discrimination. Section 19.1 states: “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's”, constituting indirect discrimination. Section 26 sates: “A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B”, constituting harassment.

 

The Equality Act 2010 (20.1, 20.3 and 20.4) then proceeds to explain: “Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.” “The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” “The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

 

The following is also stated with regards to non-compliance with the Equality Act 2010 (21.1 and 21.2): “A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.” “A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

 

The Equality Act 2010 puts employers under a positive duty to make reasonable adjustments for disabled people, to help them overcome disadvantage resulting from an impairment. The Act includes statutory protection from discrimination arising from disability. This states that it is discrimination to treat a disabled person unfavourably because of something connected with their disability. This type of discrimination is unlawful. Indirect discrimination also covers disabled people, if a disabled person could claim that a particular rule or requirement that is in place disadvantages disabled people. Additionally, harassment constitutes a form of discrimination, whereby the discriminator has been made aware of protected characteristics and continues to engage in intimidating, hostile behaviour, out of accordance with the Equality Act 2010.

 

In compliance with the Equality Act 2010, even councils offer mitigating circumstances to appeal an official charge issued. An example of this is Cheshire East Council’s Mitigating Circumstances (MC1) which states that their first mitigating circumstance is where someone “claims to have become unwell”, and another whereby the motorist is “transporting a Blue Badge holder”, amongst others.

 

The Equality Act 2010 (142) further states that “A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.” This includes failure to make reasonable adjustments for those with protected characteristics, including disability, and the application of unreasonable penalties. Failure to anticipate the needs of disabled persons and refusing reasonable adjustments directly violate the Equality Act 2010.

 

It is reasonable to suggest First Parking LLP must act in compliance with the BPA Code of Practice and the Equality Act 2010 to provide ‘reasonable adjustments’ for those with disabilities and to take these factors into consideration when reviewing evidence and appeals. I require First Parking LLP to provide strict proof of their compliance with the BPA Code of Practice and the Equality Act 2010.

 

 

2. Lack of Disabled Bays

The Development Control Advice Note 11 (DCAN 11): Access for People with Disabilities states in paragraph 11: “The Department recommends that where car parking provision is in excess of 50 spaces 4% should be reserved specifically for people with disabilities. In smaller car parks at least one space should be provided.”

 

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA), has also stated: “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. […] No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

 

It is not unreasonable to suggest that First Parking LLP do not have proof of accommodation for people with disabilities. This can be shown both through their lack of obvious ‘reasonable adjustment’ for those with disabilities in accordance with the Equality Act 2010 – demonstrated through their absolute lack of disabled-specific stopping areas and lack of consideration for those with disabilities. This is in addition to their refusal to consider ‘reasonable adjustments’ for a disabled person with protected characteristics. Furthermore, First Parking LLP have not provided any guidance regarding grace periods and how it is adjusted for those with disabilities. I require First Parking to provide strict proof to evidence their compliance with the BPA Code of Practice, the Equality Act 2010, and the DCAN 11.

 

 

3. Unenforceable Terms: Consumer Rights Act 2015 – non-compliance

The Consumer Rights Act 2015 (62.4, 62.5, 62.6, 62.1 and 62.2) states that “A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.” “Whether a term is fair is to be determined— (a) taking into account the nature of the subject matter of the contract, and (b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.” “A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.” “An unfair term of a consumer contract is not binding on the consumer.” “An unfair consumer notice is not binding on the consumer.”

 

The Consumer Rights Act 2015 outlines the criteria for contract terms and notices to be fair. In this instance, it is not unreasonable to suggest that First Parking have failed to comply with the Act through imposing arbitrary time limits that are disproportionately detrimental to the consumer, particularly given the presence of a disabled passenger. There is no valid justification for such an unreasonable rule, particularly having been made aware of the protected characteristics of a disabled passenger, constituting a clear breach of both the Consumer Rights Act 2015 and Equality Act 2010. I require First Parking to provide strict proof to evidence their compliance with the BPA Code of Practice, the Equality Act 2010, the DCAN 11, and the Consumer Rights Act 2015.

Cute_Doggos

4. Inadequately Positioned and Lit Signage: BPA Code of Practice – non-compliance

The BPA Code of Practice (3) states that: “Signs and surface markings are used to provide information to drivers to indicate that they are entering controlled land, to display such terms and conditions as apply to direct traffic movements and to delineate parking bays. Signs and surface markings must be designed, applied and maintained in such a way as to be visible, legible and unambiguous to drivers.”

 

The BPA Code of Practice (3.1) outlines the minimum requirements for signage. This includes (3.1.3): “Signs within controlled land displaying the specific terms and conditions applying must:

a) be placed within the controlled land, such that drivers have the chance to read them at the time of parking or leaving their vehicle;

b) be sufficiently large to be visible from a distance and legible on approach;

c) display information to identify the parking operator and their contact details:

d) display the logo of the ATA which is responsible for maintaining the membership of the parking operator;

e) be professionally made (not handwritten) using a sans serif (i.e. highly legible) font;

f) use a sentence-case font size appropriate for the location of the sign so as to be clearly readable by a driver, having regard to the likely position of the driver in relation to the sign;

g) use colours such that the contrast between the background and the text makes the wording on the sign clearly legible;

h) display the parking tariff of sums payable, or indicate where the tariff is displayed if separate, or the duration of permitted free parking as appropriate;

i) be clear, unambiguous and not use the words “penalty” or “fine”, unless there is a statutory requirement to do so;

j) display the parking charge that the parking operator may apply for breaches of such terms and conditions as may apply in a large font;

k) where the parking operator is operating controlled land subject to byelaws, indicate the requirements those byelaws impose in respect of parking and the consequences that apply, where applicable; and

l) indicate clearly in shared-use land whether and where different terms and conditions apply.”

 

The BPA Code of Practice (3 Note 1) further explains: “Entrance signs should be designed to avoid clutter and display only the key information drivers need to know before entering controlled land […] Where parking is invited in the hours of darkness entrance signs must be visible to approaching drivers and hence may require lighting”. In addition, Section 3 Note 3 states: “In meeting obligations to display signs […] operators should avoid overcomplicating signs with text that crowds out space for display of the key terms and conditions for staying, e.g. payment of tariff and display of permit.”

 

Figure 1: entrance signage at [...]

 

Figure 2: exit signage at [...]

 

There are no ground boundary markings indicating the start and end of the premise suggesting the boundary of the venue, nor any bay markings. In addition, there is no clear sign indicating the entrance nor exit of the venue. Furthermore, there is no lighting on the signage. As a result, it is not unreasonable to suggest that one would not conclude a controlled area has been entered, particularly at night. The signage within the premise is inadequate and illegible in a number of ways, not least due to the sheer amount of text that must be read, non-compliant with BPA’s Code of Practice (3).

 

The images (figures 1 and 2) show the signage within the premise, under the same conditions as the date and time for which the PCN has been issued. The signage is unremarkable, small, not lit, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before the action of ‘parking’. The positioning of the signage poses a significant challenge for drivers to view the sign upon entering or leaving, whereby vehicles can easily block the signage.

 

Figure 3: image provided by First Parking of entrance of the vehicle

 

Figure 4: image provided by First Parking of exit of the vehicle

 

Furthermore, images provided by First Parking clearly illustrate the lack of lighting in the aforementioned area (figures 3 and 4), confirming inadequate lighting around the area including signage.

 

It cannot be reasonably assumed (particularly given this case took place after sunset with inadequate lighting for signage) that a driver drove past, observed signage and could read a legible sign prior to stopping.

 

This case is more similar to the signage in POPLA decision 5960956830 on 02/06/16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate: ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

 

A similar POPLA appeal in September 2017 versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site, and therefore the signage was not compliant with section 18.3 of the BPA Code of Practice.

 

In April 2018, a not dissimilar POPLA Appeal versus ParkingEye was successful on the grounds that the assessor (Ashlea Forshaw) believed there was a clear lack of lighting and that the signs could not be clearly seen during the hours of darkness. Ashlea Forshaw wrote the following: “Having assessed the operator's evidence of the signage displayed at the site, I am not satisfied that this proves that the signs are displayed clearly in the dark.”

 

The assessor further states: “The ANPR photos clearly demonstrate that the appellant has entered the site during the hours of darkness. Therefore, I would expect the operator to provide sufficient evidence proving that there is lighting at the site and that the signs can be clearly seen during the hours of darkness. On this occasion, the operator has failed to demonstrate this and so, I cannot conclude that a contract was formed. Therefore, this appeal is allowed and the other grounds for appeal do not need any further consideration.”

 

It is apparent that the initial entrance signs in the car park are poorly located, invisible after dark (not lit), and the terms and conditions illegible. As a result, it is reasonable to suggest a lack of opportunity to read any terms and conditions involved within this case.

 

Bearing all the evidence above in mind, there was also categorically no contract established between the driver and First Parking LLP. To draw on the basic guidelines of contract law, for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

 

 

5. No Evidence of Period Parked: Stopping vs Parking

Contrary to the parking charge issued, the case in question was not one of ‘parking’. The vehicle in question was stopped for a period of time, as opposed to being ‘parked’. The distinction being drawn here is in line with the rulings from the Crown Court in the Laura Jopson v Homeguard Services Limited trial on 29/06/2019.

 

In the Laura Jopson v Homeguard trial, it was stated that: “it is possible to draw a real and sensible distinction between pausing for a few moments or minutes […], and parking in the sense of leaving a car for some significant duration of time.”

 

It was agreed that there were distinguishing factors between parking and stopping. Parking was suggested to be “leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it”, whereas stopping was defined as “perhaps coping with some vicissitude of short duration”. It is not unreasonable to suggest that coping with additional time required by a disabled individual with a protected characteristic is coping ‘with some vicissitude of short duration’ and thus comes under the category of ‘stopping’ as opposed to ‘parking’.

 

At the end of the trial, it was concluded that: “Whether a car is parked, or simply stopped, or left for a moment while unloading, or accompanying a frail person inside, must be a question of fact or degree.” “A person who stops momentarily... to allow a passenger to exit or to deliver items... is not parking but rather engaging in activities ancillary to the act of driving.” In the Laura Jopson v Homeguard Services Limited trial it was decided that even though “the appellant’s car had been stationary […] it was not ‘parked’. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.”

 

It is not unreasonable to extrapolate the outcomes and findings of this trial to the current case in question, with the argument being that the vehicle in question was not ‘parked’ – rather it was ‘stopped’ to cope “with some vicissitude of short duration”, i.e. a disabled individual with protected characteristics requiring reasonable adjustments, not meeting the legal definition of parking. As First Parking LLP have stated the vehicle in question was ‘parked’ as opposed to ‘stopped’, I require First Parking LLP to provide strict proof of their claim of the vehicle being ‘parked’.

 

 

6. Absence of Surface Markings: BPA Code of Practice – non-compliance

The BPA Code of Practice (5.3) states: “Parking operators must only pursue parking charges in instances that could be interpreted as stopping if they have explicit consent to do so on evidenced security or safety grounds from their ATA, following audit of the adequacy of the signs and surface markings in place to inform drivers of the terms and conditions in place."

 

The BPA Code of Practice (2.36) defines surface markings as “the lines, symbols and/or text applied to the surface of controlled land or created through the use of surfacing materials.” The photographs below (figure 5) clearly show the absence of any surface markings in the area in question. Without these markings, it is impossible to determine the boundaries of the controlled land, rendering the terms and conditions in place unenforceable.

 

Figure 5: absence of surface markings at entrance

 

The absence of surface markings clearly demonstrates non-compliance with the BPA Code of Practice. As a result, it is reasonable to assert that the boundaries of the land were not adequately defined. Under such ambiguous circumstances, any attempt to establish a contract based on the terms and conditions of the land would be invalid.

 

 

7. Grace Period: BPA Code of Practice & Equality Act 2010 – non-compliance

 

The BPA Code of Practice (2.15) defines a grace period as “a period of time in addition to a parking period where all terms and conditions have been complied with, when no parking charge can be issued.” Section 5 proceeds to explain that “It is also a requirement to allow a grace period in addition to the parking period where parking is permitted, and all terms and conditions have been complied with.”

 

In the case of a disabled passenger with protected characteristics, the BPA Code of Practice (5) states: “Many parking operators and landowners choose to recognise the Blue Badge scheme and provide designated provision with specific bays which allow more space for opening vehicle doors, getting in and out of the vehicle, accessing a wheelchair etc. This might be appropriate for recognising the needs of people with limited physical mobility, but adaptations are not purely physical - people with other disabilities might reasonably need longer consideration period and grace periods”

 

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA), has stated: “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. […] No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” Therefore, grace periods must be adjusted accordingly in line with the Equality Act 2010, so as to not breach primary disability law.

 

The mention of “a minimum of ten minutes” means, to any reasonable interpretation, that the timescale eluded to by First Parking LLP is de minimis as a part of the grace period for a disabled individual with protected characteristics under the Equality Act 2010, and therefore not applicable for a parking charge.

 

It is therefore argued that the duration of visit in question is not an unreasonable grace period, given:

a.      The presence of a disabled passenger with protected characteristics, under the Equality Act 2010;

b.      The site is not well lit and relies on nearby street lighting as its primary source of lighting;

c.      Visibility was hindered further as the site was in darkness at time of the visit;

d.      The absence of surface markings to denote a controlled area with terms and conditions (non-compliance with BPA Code of Practice (5.3));

e.      The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice (3.1)) and the impact of that upon time taken to locate signage prior to entering into a contract;

f.       There is no marked parking bay throughout the venue, which causes confusion to the applicability of the First Parking LLP’s contract, that was never entered into in the first place;

g.      The failure to light signage so as to make signs visible from all parking spaces (which they are not, especially at night-time) and legible once located;

h.      The lengthiness of First Parking LLP’s signage (in terms of word count) all written in tiny text the across of the sign.

 

All factors discussed above serve merely to increase the time taken to:

a.      Locate absent surface markings indicating an entrance;

b.      Locate a sign indicating an entrance;

c.      Locate a sign containing the terms and conditions;

d.      Attempt to read the full terms and conditions in the darkness, with no lighting on the signage;

e.      Decipher the confusing information being presented;

f.       Decide not to park and therefore not entering into a contract;

g.      Return to car and safely leave the car park.

 

It is clear that reasonable adjustments under the Equality Act 2010 for a disabled individual with protected characteristics were not complied with by First Parking, constituting a breach of both the BPA Code of Practice and the Equality Act 2010. It is therefore argued that the duration of visit in question does not carry an unreasonable grace period, particularly given the presence of a disabled passenger. Consequently, the onus falls on First Parking to provide strict proof to evidence their compliance with the BPA Code of Practice and the Equality Act 2010.

Cute_Doggos

8. No Evidence of Landowner Authority: BPA Code of Practice – no strict proof of full compliance

As this operator 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 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).

 

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. It is not unreasonable to 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 Code of Practice) and basic information such as the land boundary and bays where enforcement does or 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, particularly because template private parking terms and sums have been known not to match the actual landowner agreement).

 

The BPA Code of Practice (14.1) states: “Where controlled land is being managed on behalf of a landowner(s), before

a parking charge can be issued written confirmation must be obtained by the parking operator from the landowner(s) covering:

a) the identity of the landowner(s)

b) a boundary map of the land to be managed;

c) such byelaws as may apply to the land relating to the management of parking;

d) the permission granted to the parking operator by the landowner(s) and the duration of that permission

e) the parking terms and conditions that are to be applied by the parking operator, including as appropriate the duration of free parking permitted, parking tariffs, and specific permissions and exemptions, e.g. for staff, residents or those stopping for short periods such as taxi and minicab drivers, delivery drivers and couriers;

f) the means by which parking charges will be issued;

g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs

h) the obligations under which the parking operator is working, in compliance with this Code and as a member of an ATA;

i) notification of the documentation that the parking operator may be required to supply on request to authorised bodies detailing the relationship with the landowner; and

j) the parking operator’s approach to the handling of appeals against parking charges.”

 

Additionally, in paragraph 14 Note 2 the BPA Code of Practice adds: “Particular care is needed to establish appropriate contractual terms, including the application of parking terms and conditions, in respect of controlled land where leaseholders may have rights that cannot be qualified or overruled.” The BPA Code of Practice (3 Note 2) further states that: “Where land is governed by byelaws the management regime must not be prohibited by those byelaws. It is important that parking operators do not confuse the enforcement of byelaws with the contractual application of parking charges.”

 

Paragraph 14 of the BPA Code of Practice defines the mandatory requirements, and I put it to this operator to provide strict proof of full compliance.

 

 

9. No Evidence of Period Parked – Notice to Keeper does not meet PoFA 2012 requirements

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus stopped, having not entered into a contract.

 

Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the Notice to Keeper to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” First Parking LLP’s Notice to Keeper simply claims the vehicle “was in breach of the terms and conditions for parking”.

 

The Notice to Keeper separately states that the vehicle “entered [...] at [...] and departed at [...]”. At no stage do First Parking LLP explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

 

It is not in the rights of First Parking LLP to substitute “arrival/departure” or “time in car park” in place of the POFA requirement “period of parking” and hold the keeper liable as a result.

 

By virtue of the nature of an ANPR system recording only entry and exit times, First Parking LLP are not able to definitively state the period of parking.

 

I require First Parking to provide evidence to show the vehicle in question was parked on the date/time for the duration claimed and at the location stated in the Notice to Keeper.

 

 

10. The ANPR System is Neither Reliable nor Accurate

The First Parking LLP’s Notice to Keeper shows no evidence of time ‘parked’, but rather merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the period of parking in question.

 

The Notice to Keeper states the vehicle “entered [...] at [...] and departed at [...]”.

 

These times do not equate to any single evidenced period of parking. By First Parking LLP’s own admission on their Notice to Keeper, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.

 

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states; “Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

 

Furthermore, advice provided by the BPA states that: “As with all new technology, there are issues associated with its use”. They mention flaws with their system, specifically with regards to “‘drive in/drive out’ motorists”, receiving “a charge certificate even though they have not parked”. They further mention that: “Reputable operators tend not to uphold charge certificates issued in this manner”. (Source: https://www.britishparking.co.uk/ANPR)

 

The BPA Code of Practice (7.3) states: “images generated by ANPR or CCTV have been subject to a manual quality control check, including the accuracy of the timestamp and the risk of keying errors.”

 

The BPA Code of Practice (7) further adds: “Parking operators may use camera technology to remotely manage parking on controlled land as long as they do so overtly, and in a reasonable, consistent and transparent manner. In particular parking operators must make sure the data they are collecting is accurate, securely held and cannot be tampered with.”

 

In this case the driver drove in and stopped, where there are no signs or bays at all. It is not unreasonable to suggest that the ANPR system has failed and the operator has breached the first data protection principle, through processing flawed data from their system.

 

I require First Parking LLP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. I also require First Parking LLP to provide strict proof of manual quality checks carried out prior to issuing this charge.

 

As grace periods are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times, it is vital that First Parking LLP produce the evidence requested in the previous paragraph.

 

11. No Evidence of Entitlement to Levy Charges without Consideration

I contend that First Parking LLP are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS v HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

 

I require First Parking LLP to provide strict proof of their contract with the landowner that entitles them the authority to levy these charges. I require that First Parking LLP produce a copy of their contract with the landowner and that the POPLA adjudicator kindly reviews this.

Coupon-mad

I'd remove points 10 and 11 which are over-egging the pudding IMHO. Not things that POPLA consider; might distract the Assessor.

Cute_Doggos

Coupon-mad said:

I'd remove points 10 and 11 which are over-egging the pudding IMHO. Not things that POPLA consider; might distract the Assessor.

Really appreciate it, thank you so much! I will do that now. Would you recommend any other additions or changes? I remember reading that the EA isn't often a winning point, but I hope it would be here so I put it first. Not sure if I've missed anything else out

Coupon-mad

I'd include the EA. Shame on POPLA that they don't consider that law. Include it anyway.

Gr1pr

The claimant may offer no contest and pull out to save the fee,  chucking in the towel,  so it may not get a Popla decision,  just closure,  untested, not that it matters since we are awaiting proper regulation and adjudication 

Cute_Doggos

Thank you both very much

Would it also be worth adding a picture of the blue badge in the appeal?

Gr1pr

Cute_Doggos said:

Thank you both very much

Would it also be worth adding a picture of the blue badge in the appeal?

You can do so, but hide the picture I.D. and the latter half of the badge number,  plus any private details like address,  Date of birth etc, leaving the name and dates on show,  but no other private data 

Cute_Doggos

Gr1pr said:

Cute_Doggos said:

Thank you both very much

Would it also be worth adding a picture of the blue badge in the appeal?

You can do so, but hide the picture I.D. and the latter half of the badge number,  plus any private details like address,  Date of birth etc, leaving the name and dates on show,  but no other private data 

Thank you!