Do you think I should be adding some of the details discussed in my initial post?
I would really appreciate your thmbs-up before sending this documents to POPLA appeal.
Look forward to hear from you,
Best regards,
POPLA Verification Code:
MET Parkin Services PCN no:
A notice to keeper was issued on ____ and received by me, the registered keeper of the Vehicle Registration Number: ____ for the alleged contravention of ‘Failure to validate stay in car park’’ at McDonalds, Gatwick. This vehicle is routinely used by more than one individual.
As a registered keeper of this vehicle and as a result of this claim, I the registered keeper of the vehicle visited McDonalds restaurant at Gatwick Airport, used their car park and it was noticed that there is no signage at the entrances to the site from the main road, nor are the instructions given on the signs clearly indicated.
I also had fairly long conversation with the Manager, who was unhappy that these complaints were becoming a frequent occurrence. The Manager expressed his disgust with the way MET Parking Services are producing these PCN to legitimate patrons and driving away business and expressed his wish that unfair PCN be cancelled but added that there was nothing that he could do as the alleged “offence had occurred too long ago”.
He also stated that the “signage was confusing, not enough signs for the large car park area and not present inside the restaurant were tickets are actually validated”. In fact, during my visit I saw no signs inside the restaurant and no staff offered or prompted to validate the car par ticket.
I honestly believe that the driver of my vehicle has done nothing wrong as a matter of principle as they were genuine customers of the restaurant that day and they kept their stay to less than 30 minutes (copy of the credit card statement attached below).
As the registered keeper I would be grateful if you would please consider my appeal for the following reasons:
1) MET Parkin Services has deliberately chosen not to use POFA and has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103).
2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
3) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.
4) No evidence of Landowner Authority nor legal standing to form contracts or charge drivers - the operator is put to strict proof of full compliance with the BPA Code of Practice.
5) Misleading system and signage at fault.
6) 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.
7) Consumer Protection from Unfair Trading Regulations - breach
I therefore request that POPLA uphold my appeal and cancel this PCN.
1) MET has deliberately chosen not to use POFA and has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
MET has deliberately chosen not to use POFA and make no mention of such or the transfer of liability to the keeper under POFA 2012 in the Notice to Keeper I have received.
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. 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 parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4 which they have not in this case. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with 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.
Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 which in this case the operator is not.
This exact finding was made in 6061796103 against 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."
2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
If MET Parkin Services want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and MET Parkin Services have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that MET Parkin Services have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.
Furthermore, the notice to keeper was not received within the maximum 28 days period from the date of the alleged breach. Specifically, the alleged breach occurred on ___, and the notice to keeper was issued 42 days later on ___ and received the ___.
The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.
3) Failure to comply with the data protection 'ICO CCTV Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.
BPA’s Code of Practice (21.4) states that: “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.
BPA’s Code of Practice (36.1a) states that:
“You may send an NTO to the registered keeper…”
“You must tell them about the complaints procedure they can use to tell the Information Commissioner and the DVLA if they believe their data has been used inappropriately.”
The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at:
link
The ICO’s CCTV Code of Practice makes the following assertions: “This code also covers the use of camera related surveillance equipment including:
• Automatic Number Plate Recognition (ANPR);”
“the private sector is required to follow this code to meet its legal obligations under the DPA. Any organisation using cameras to process personal data should follow the recommendations of this code.”
“If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”
“You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on individuals”
“You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper assessment.”
“If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.”
“Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimise these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.”
“Note: ... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.”
“A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a lawful basis and is justified, necessary and proportionate.”
The quotations above taken directly from the ICO’s CCTV Code of Practice state that if MET Parking Services wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that MET Parking Services must regularly evaluate whether it is necessary and proportionate to continue using it.
It therefore follows that I require MET Parking Services to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has “a lawful basis and is justified, necessary and proportionate”.
The ICO’s CCTV Code of Practice goes on to state:
“5.3 Staying in Control
Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:
• tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”
“7.6 Privacy Notices
It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear.
One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.”
MET Parking Services have not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). This is in direct violation of the ICO’s CCTV Code of Practice – specifically with the extracts quoted above.
As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.
4) No evidence of Landowner Authority nor legal standing to form contracts or charge drivers - the operator is put to strict proof of full compliance with the BPA Code of Practice.
I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give MET Parkin Services any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, MET Parkin Services lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require MET Parkin Services to demonstrate their legal ownership of the land to POPLA.
I contend that MET Parkin Services is 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 believe there is no contract with the landowner/occupier that entitles MET Parkin Services to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to MET Parkin Services to prove otherwise so I require that MET Parkin Services produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between MET Parkin Services and the owner/occupier, containing nothing that MET Parkin Services can lawfully use in their own name as a mere agent, that could impact on a third-party customer.
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).
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.
5) Misleading system and signage at fault
In the appeal rejection MET Parking Services have alleged that “When you left the car park you acknowledged that you had not validated your stay and confirmed you were parked without authorisation by pressing the button to raise the barrier.”
The way MET have worded that implies I was the driver even though I appealed as the keeper and clearly stated to them that I was not the driver.
Nowhere on their sign and on the button/barrier (pic attached) does it state that pushing the button will raise the barrier. Their sign says "use their validated ticket to raise the exit barrier". This instruction suggests to me that the barrier won't lift without the presentation of a validated ticket, so their system and signage is confusing and therefore, at fault.
6) 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.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious and parking terms and 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, some of the signs in this car park do not display the full terms and there are no details of the sum of the parking charge itself in large lettering at the entrance or at the exit barrier either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is 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.''
Based on a recent visit to this car Park and 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:
''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.''
''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.
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.
7) Consumer Protection from Unfair Trading Regulations - breach
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