LBC from BWLegal for Britannia PCN - part 2 of 2

Hi all, (for those who read part 1, the only new part here is the POPLA assessment)

I'm in possession of 2 LBCs from BWLegal after receiving two separate parking 'fines' for two consecutive days in June. The Driver of the vehicle had just started her new job and had genuinely missed a sign at the entrance of the 4-storey car park in the middle of a retail park thinking it would be free. She missed the sign because just before the entrance (and exit) of the car park, a pedestrian path crosses the entry path so it's a rather dangerous place to be looking anywhere other than nearby for crossing pedestrians. There are also few signs on the floor where she parked (1 small one to be precise).

The driver still parks in this car park on occasion and now pays regularly as she obviously now knows it's a paid for car park!

I have been advised to post a separate thread for each LBC, so will start with the first one:

I appealed to POPLA on the following grounds, with the main one being insufficient signage:

- NtK was never served
- failure to prove keeper liability
- lack of standing or authority
- inadequate signage
- ANPR unreliable

Following Britannia's lodging of documents in the portal (including a redacted witness statement on Britannia letterhead supposedly proving standing or authority!), I also added pictures which show very inadequate signage (small letters, just a small sign on the first floor) and I also added pictures of the dangerous entry and exit where the main entrance sign is affixed that the assessor refers to as being satisfactory. In my rebuttal, I re-iterated my case that the pictures show there is inadequate signage in general, and I particularly objected to the proof of authority supplied by Britannia which was a heavily redacted, scrappy piece of paper called a 'Witness Statement' on Britannia headed paper.

As you will see below, these points were ignored (as in, not even mentioned in the decision). Despite my rebuttal, the assessor seems to lay the burden of proof with me when it comes to ANPR and even suggests that I should prove Britannia do not have standing or authority, which is interesting I guess for future reference.

I have sent a SAR to Britannia now I have the LBC, and an email to BW Legal to put the case on hold and to stop harassing me (like with everyone else, they are calling, texting and emailing me at ALL hours of the day). Other than that, I am just sitting tight until I receive the actual court claim. The letter has given me til the end of Jan to respond. My LBC was not compliant (did not follow all practice direction points) but I have not yet responded to that - it can be part of my defence once I come to write it? I am not on MCOL yet but I will do this as soon as I have the Court Claim.

Advice on my defence would be helpful although to my newbie eyes it looks like the only one I can win on is the poor signage (and that is my genuine defence!) I don't see how the driver would have been able to read all the information on the signs that Britannia submitted PLUS their photos were all close-ups whereas mine showed that the signs they have up could in no reasonable way have been legible from all angles of the carpark.

In addition, BWLegal have done the usual of adding £60 to the 'fine', which I also intend to reference. I'll update this thread when the letter arrives or if anyone has any advice in the meantime of course!

Unsuccessful decision below:

The Assessor has considered the evidence provided by both parties and has determined that the Appeal be Refused. In order to avoid any further action by the Operator, payment of the parking charge should be made within 28 days.]

The Assessor’s summary of the operator’s case: The parking operator issued a parking charge notice for failed to make valid payment.

The Assessor’s summary of the appellant’s case: The appellant has raised several grounds of appeal as follows: 1) a compliant Notice to Keeper (NTK) was never served - no keeper liability can apply; 2) 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; 3) the operator has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court; 4) the signs in this car park are not clear, legible or prominent from all parking spaces and there is insufficient notice of the sum of the parking charge itself; and 5) the Automatic Number Plate Recognition (ANPR) camera system is unreliable and inaccurate.

In their comments to POPLA the appellant reiterates their version of events for the day in question. Reasons for the Assessor’s determination: I am satisfied that the appellant was the driver of the vehicle on the day of the contravention. I will therefore be considering her liability as driver of the vehicle. The terms and conditions at the site state “Pay on arrival… Restrictions and charges apply Monday – Sunday 24 hours a day… up to 1 hour £0.60… up to 3 hours £1.20… All day £3.50… Please enter full and correct vehicle registration into the payment machine when paying the tariff… A £100 parking charge notice may be issued to all vehicles which: Fail to purchase a valid ticket, voucher or permit.” In this instance the parking operator has issued a Parking Charge Notice (PCN) as it alleges the motorist has failed to make a valid payment.

The operator has provided copies of its signage, including a site map. Further, the operator has provided photographs from its Automatic Number Plate Recognition (ANPR) cameras situated at the entrance and exit points. These captured the vehicle details of EN57VUS entering the site at 11:30:00 and exited the site at 18:20:01. The parking operator has issued a PCN to the registered keeper of the vehicle after the DVLA returned the keeper details.

The appellant has raised several grounds of appeal as follows: 1) a compliant Notice to Keeper (NTK) was never served - no keeper liability can apply; 2) 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; 3) the operator has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court; 4) the signs in this car park are not clear, legible or prominent from all parking spaces and there is insufficient notice of the sum of the parking charge itself; and 5) the Automatic Number Plate Recognition (ANPR) camera system is unreliable and inaccurate. In their comments to POPLA the appellant reiterates their version of events for the day in question. The appellant states the NTK is not compliant and therefore no liability can apply. The parking operator has not shown that the individual it is pursuing is in fact the driver. I note that when the parking operator requested the details of the registered keeper of the vehicle, the DVLA returned the details the appellant is acting on behalf of.

As such, I believe that the parking operator was correct to issue the PCN to the registered keeper of the vehicle given the DVLA named her as the registered keeper at the time. I have reviewed the Notice to Keeper sent by the operator to the keeper of the vehicle. I have reviewed all of paragraph 9 in PoFA and the requirement of the Notice to Keeper and I am satisfied that the parking operator has met all of the requirements. As such this entitles it to pursue the registered keeper of the vehicle for unpaid parking charges in the event it does not receive the full details of the driver within the period specified.

The appellant states the operator has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court. The operator has produced a witness statement to prove they can operate on the land. I am satisfied this meets the criteria to show it has the authority to operate on this land. An operator does not need to provide a full contract due to this containing commercially sensitive information. I am satisfied that the witness statement provided by the operator meets the requirements of the British Parking Association (BPA) Code of Practice.

The appellant states the signs in this car park are not clear, legible or prominent from all parking spaces and there is insufficient notice of the sum of the parking charge itself. For this reason, I will consider whether the operator has provided evidence to satisfy the requirements of section 18 of the BPA Code of Practice in order to consider it meets the requirements of section 21 of the BPA Code of Practice. Section 18.1 states “in all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Having considered the evidence provided, I am satisfied that the operator had installed a suitable entrance sign at this location and this was sufficient to make motorists aware that the parking is managed on this particular piece of land.

Section 18.2 stipulates that, “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.” Furthermore, within Section 18.3, it states that: “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

Having considered the signage in place, I am satisfied that the operator has installed a number of signs throughout the car park and these are sufficient to bring the specific terms and conditions to the motorists’ attention. In my view, these are “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.” When entering onto a managed private car park, a motorist might enter into a contract by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore, upon entry to the car park, the driver should have reviewed the terms and conditions before deciding to park.

The appellant states the ANPR camera system is unreliable and inaccurate. The BPA Code of Practice contains guidelines for the use of ANPR cameras within Section 21. The parking operator states it fully complies with this. In relation to Section 21.1 the parking operator uses ANPR cameras in a reasonable, consistent and transparent manner. All signage contains the universally recognised symbol for the use of these cameras and it is made clear that ANPR technology is in use on site.

As already stated I am satisfied with the parking operator’s signage at the site and therefore satisfied they have complied with Section 21.1. I acknowledge the appellant’s request stating they want proof of the ANPR quality check relating to the date the PCN was issued to the registered keeper. However as there is no evidence to dispute the accuracy of the ANPR I must work on the basis that it is fully accurate. ANPR cameras are used to capture images of vehicles when they enter and exit a site. This then calculates the length of the vehicle’s stay.

Unless sufficient evidence can be given to dispute that a vehicle was not onsite for the recorded time, this is deemed a reliable way to monitor a vehicle’s stay. As such, photographs of a parked vehicle are not necessary. POPLA is evidence based and can only assess an appeal based on the evidence presented by both parties. The evidence supplied by the appellant in relation to this appeal is insufficient to disprove that provided by the operator.

The parking operator has provided specific evidence documenting the vehicle entering and leaving at these times while the appellant has been unable to provide any evidence, which would cast doubt on the legitimacy of these images. In addition, it has shown that there is no payment registered against the appellant’s vehicle on the day in question and nor as the appellant stated they made payment. As such the appellant is parked in breach of the terms and conditions of the parking operator, thereby agreeing to the parking charge they have now received.

Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. If a motorist is in disagreement with the terms and conditions offered or feels that the terms and conditions cannot be complied with, there would be sufficient time to leave the site without entering into a contract with the operator. By remaining parked on site, the appellant accepted the terms and conditions offered. After considering the evidence from both parties, I am satisfied the parking charge notice has been issued correctly. Therefore, this appeal must be refused.. Accordingly, the Appeal is Refused.