PE refused appeal

Dave59_2 · 15 September 2018 at 11:40AM

History is I was taken to Eye Hospital 30 miles away with detached vitreous. On arrival found we had o pay, so driver paid with all cash she had - no availability for card payment and no idea here cash points etc would be.

Following treatment and advice left the site albeit out of time paid for. Received standard PCN from PE stating car "either not purchasing appropriate parking time or by remaining for longer than permitted."

Blue appeal from stickies sent and letter received yesterday with "gesture of goodwill" extending grace period by 14 days from date of unsuccessful correspondence.

I have POPLA number and note that from PE letter if I appeal and am unsuccessful full amount payable, even if I have already paid discounted rate! (which I have not done). They have given me weblink for images of car, but not of signage on the day in question.

I also note the following grounds for appeal on the POPLA notice
1. My vehicle was stolen
2. I was not improperly parked
3. The amount requested on the parking charge is not correct
4. I was not the driver OR THE REGISTERED KEEPER of the vehicle at the time of the allege improper parking.
5. Extreme circumstances prevented me from parking correctly
6. Other

Note my capitals.

What is the best way of appealing to POPLA? Note my wife wants me to pay discounted rather than run risk of full amount if we appeal and lose?!

Thanks in advance guys

Dave59_2 · 15 September 2018 at 11:58AM

Just read further down stickies and it seems my initial PCN is a "golden ticket".

Here is what I plan to send (based on stickie):

ADDRESS
EMAIL
CAR LICENSE PLATE
DATE

Dear POPLA,

On the DATE, ParkingEye Ltd. issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “remaining at the car park longer than the stay authorised”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:
The Notice to Keeper is not POFA compliant
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

Please see below for details

The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
At no point have ParkingEye provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

I have contested this with ParkingEye with regards to their PCN reference REFERENCE, but they have written to me (dated DATE) to say I have been unsuccessful and provided POPLA reference REFERENCE.

I sincerely hope you are able to help me.

Many thanks,

NAME

Should I try and include under extreme circumstances or other that due to nature of injury we were unable to chase up extra cash for machine?

Fruitcake · 15 September 2018 at 12:12PM

Always use "Other."

There are a number of template appeal points you can use from post 3 of the NEWBIES. Just a copy and paste and check exercise. Non POFA compliant NTK being the first point to use.

Your appeal is very short compared with what we would normally suggest, and you haven't actually said how the NTK is non-compliant. PoPLA assessors are not known for their brains and unless you spell things out for them (and even then they still get things wrong) you run the risk of a rejection.

Post your draft here for checking before you submit it.

Don't bother with mitigation or your story about what happened on the day. It is irrelevant and PoPLA won't consider it.

Did you complain to PALS? That should always be your starting point.

You should also complain to your MP and the MP where the hospital is located about this unregulated scam.

These are some of the comments made by the MPs in Parliament concerning the unregulated parking industry (Feb 2018):

https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

These are the exact words used, so you should quote them to your MP in a complaint and ask him/her to contact Sir Greg Knight MP if he/she wants further information about this scam.
You should also quote the above to PALS/the hospital management team/CEO.

Dave59_2 · 22 September 2018 at 4:24PM

Thanks Fruitcake.
Here is my appeal

Dear Sir/Madam

I contend that I am not liable for this parking charge on the basis of the below points:

1) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
3) ANPR Accuracy and Compliance
4) No evidence of Landowner Authority2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

1) The operator has not shown that the individual who it is pursuing is in fact 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.

I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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.

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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Furthermore, it is clear that ParkingEye are still not transferring the driver’s laibility to the keeper because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.

<images of PCN>

So, this is a charge that could only be potentially enforced against a known driver. Whilst I was an occupant of the car, the driver has never been admitted and there is no evidence as to the identity of that individual.

I can also submit that I was unable to drive at that time due to an eye injury that required me to be seen at the Eye Infirmary.
2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. 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 and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, 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.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

<link>

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

<image>

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

3) 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 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.

4) 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.

Yours faithfully

Hopefully, if I've read everything right this covers the bases?

KeithP · 22 September 2018 at 4:27PM

I seem to write this most weeks...

I am the appellant throughout (as I am entitled to be)...

Of course you are, you are the one appealing.

Did you mean to say "I am the keeper throughout"?

Coupon-mad · 24 September 2018 at 2:18AM

Remove this section completely:

3) ANPR Accuracy and Compliance

And remove the extra (2) tagged onto here in your top headings:

4) No evidence of Landowner Authority2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

But before you even try POPLA (as a POPLA code lasts for 30+ days) you MUST exhaust the PALS complaint first of course, not the other way around. Search the forum for PALS and read how others fared, most PCNs being cancelled by PALS/NHS Trusts when patients complain.

If it's the Sunderland Eye Hospital, I seem to recall a lady called Audrey was always keen to cancel these scam PCNs for patients who the Eye Hospital does not want to penalise.

You are lucky if you do have a Golden Ticket but you have not told POPLA that the PCN is a non-POFA one (date on it outside of 14 days? no POFA paragraph on the back?). You need to spell out for POPLA that this is not a POFA PCN.

Dave59_2 · 14 October 2018 at 11:33AM

Thank you to all for your help.
Coupon-Mad - I'd already sent it, but comments noted.

Received this yesterday:

Dear ********

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 60625*****.

Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET6116/001

Fruitcake · 14 October 2018 at 11:38AM

Dave59 wrote: »

Thank you to all for your help.
Coupon-Mad - I'd already sent it, but comments noted.

Received this yesterday:

Dear ********

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 60625*****.

Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET6116/001

Well done. Now please help us to help more people like you and complain to your MP and the MP where the alleged event happened. You now have proof it should never have been issued, so use that as part of your complaint, plus all the other points already mentioned.

beamerguy · 14 October 2018 at 11:46AM

Dave59 wrote: »

Received this yesterday:

Dear ********

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 60625*****.

Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET6116/001

Good news ...... just goes to show that Parking Eye
were scamming you in the first place

Only to be expected as they are BPA approved members

PE refused appeal

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