Rejected Popla. New Ticket, Same Circumstances- How to improve wording to win?

So my car was parked at Manchester Royal Infirmary multistory carpark 2 days in a row but they had removed the tokens method of payment. The driver thought there was an issue with the machines as there were grey sacks over the bases of the barriers and they were up so the driver just parked and left. It later transpired that the payment method had changed to ANPR and that the driver was expected to type the registration plate in a machine near the exit, then pay. As the registered keeper I received a car parking fine for the first day- which was appealed using some of the info on this website however it was rejected by Popla. This remains unpaid (rejected appeal 2 months ago), but they have not chased me up about it? They have now sent me a ticket for the second day so I am calling on you awesome forum users to help me succeed at Popla for this second rediculous charge. Please see my original appeal and then the Popla response. Please can anyone advise me on how to win....



My Appeal:

Dear POPLA,



PCN Number: XXXXXXX
POPLA Verification Code:XXXXXXXX


I write to you as the registered keeper of the vehicle XXXXX, I wish to appeal the £70 Parking Charge Notice (PCN) issued by ParkingEye Ltd. Based on the circumstances I submit the reasons below to show that I am not liable for the parking charge:

1. ParkingEye Ltd has no contractual authority

2. Keeper Liability Requirements and the Protection of Freedom Act

3. ANPR Accuracy and Compliance

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

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

6. No evidence of Landowner Authority



1. ParkingEye Ltd has no contractual authority In the notices they have sent me ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also, they have not provided me with any evidence that they are lawfully entitled to demand money from either the driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual unredacted copy and not just a document that claims a contract/agreement exists.



2. 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 !!!8220;keeper liability!!!8221; 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
!!!8220;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 !!!8216;reasonable presumption!!!8217; 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.!!!8221;
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:
!!!8220;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.!!!8221;



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 !!!8220;fundamentally flawed!!!8221; 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 !!!8220;time synchronisation system!!!8221;, 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 !!!8220;live!!!8221; is not really !!!8220;live!!!8221;. 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 !!!8220;evidence!!!8221; 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!!!8217; 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:
!!!61599; - be registered with the Information Commissioner
!!!61599; - keep to the Data Protection Act
!!!61599; - follow the DVLA requirements concerning the data
!!!61599; - follow the guidelines from the Information Commissioner!!!8217;s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.
At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the
car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent
manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict
compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.



4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
Although I was not the driver of the event, I would like to point out that the signs at the car park in
question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for
people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as
this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye Ltd to make the terms of their
contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be
entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions
are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.
Furthermore a contract can only be considered to be entered into if enough evidence exists that it
actually happened. For a contract to have been entered into the driver would have had to get out of
the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.
I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves
and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed !!!8220;unfair!!!8221; under the Unfair Terms in Consumer Contract Regulations 1999.



5. The car park had unclear, non-obvious, non-BPA-compliant signage leading to the driver not
being aware that a parking contract was being offered at the time (dusk on a gloomy evening).
As a POPLA assessor has said previously in an adjudication !!!8220;Once an Appellant submits that the
terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear!!!8221;.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.
The alleged breach occurred on at dusk on a gloomy evening and the signs were not readily visible
(readable) or illuminated to be seen by any driver entering the car park at that time of the day; the
car park itself had minimal illumination. These are not mitigating circumstances but failure by ParkingEye plus to ensure that their signs were to be seen accordingly. The BPA Code of Practice
section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are readily visible at the time of darkness.
The BPA Code of Practice, Appendix B, under Contrast and illumination:
Signs should be readable and understandable at all times, including during the hours of darkness or
at dusk if and when parking enforcement activity takes place at those times. This can be achieved in
a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material
similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas
do not need to be reflective.
Clearly none of these conditions were met (see pictures provided).
Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any
charges. ParkingEye did not provide me with evidence that such signs, if present, were available
throughout the car park and visible, from the area where the car was parked at the time of the
event.



6. 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 !!!8220;site agreement!!!8221; or
!!!8220;User Manual!!!8221; setting out details including exemptions - such as any !!!8220;genuine customer!!!8221; or
!!!8220;genuine resident!!!8221; exemptions or any site occupier!!!8217;s !!!8220;right of veto!!!8221; 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 upheld on every point.



Yours faithfully,
XXXXXX

Please can anyone help me write abetter appeal??