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MET PCN - Southall McDonald's - NTK after 14 days
s1214lang
post Mon, 5 Feb 2018 - 21:23
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Hi all

Firstly, thank you for reading this and for taking the time out to offer advice.

Received a PCN from MET Parking Services at McDonald's Southall. Reason for issuing charge was: Not in restaurant (ctv). They have attached one image of the car entering the car park, on the NTK, and additional images on the website show the driver parking the car, and they have essentially tracked the driver's movements on their site (total of 5-6 images).

Date of incident was 22 December 2017. No Notice to Driver issued. Date of issue of NTK was 30 January 2018, and can be assumed to have arrived on 1 February 2018. This is 41 days after the incident, which is definitely not within the 14 days required according to PoFA 2012, to enforce Keeper Liability. I think knowing this, they haven't actually mentioned anything on the PCN regarding Keeper Liability, and that the keeper will be liable after 28 days. I am guessing that paragraph would have gone at the bottom of the first page, where there is a white space (as if it was deleted).

Attached is the front and back of the PCN.





How should I word my appeal, and what points should I mention on it?

Any help will be greatly appreciated. Thank you
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s1214lang
post Sat, 17 Feb 2018 - 14:43
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QUOTE (ostell @ Sat, 17 Feb 2018 - 14:41) *
Your main appeal point is the failure to arrive within 14 days (assuming no windscreen ticket) put that in first so that there is no need to go further. Spell it out in small words for POPLA, as if they were 5 year olds.


Yeah that is front and centre on my appeal. Just wanted to know if I should also include these other points.

Thanks
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s1214lang
post Sat, 24 Feb 2018 - 19:39
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Please critique my POPLA appeal draft. Can you please also clarify if point 2 ('BPA Code of Practice - non-compliance to guidelines'), point 3 ('No evidence of period parked'), and point 4 ('Reason given for charge is incorrect') are worded right for my case. Thank you

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued by MET Parking Services (MET). I would like to have the parking charge notice cancelled based on the following grounds:

1) No Keeper Liability
2) BPA Code of Practice - non-compliance to guidelines
3) No evidence of period parked
4) Reason given for charge is incorrect
5) No landowner authority
6) Lack of signage - unclear signage
7) The ANPR system is neither reliable nor accurate


1) No Keeper Liability
The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 ("POFA") and was not served within the relevant period of 14 days, contrary to paragraph 9 (4) in Schedule 4 of the POFA. The NTK was issued/posted on 30/01/2018, a Tuesday, and therefore not delivered until 2 working days later, detailed in paragraph 9 (6), and therefore not delivered until 01/02/18, Thursday, at the earliest. Date of Event is 22/12/2017, so NTK served after 41 days instead of the required 14 days.

Although Schedule 4 of the POFA gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

The Notice to Keeper issued by the operator does not meet the strict requirements of paragraph 9. The late timing of the notice and its non-compliance of requirements under paragraph 9 is fatal for 'keeper liability'.

In terms of wording:

- Contrary to the requirements of paragraph 9 (2) (a), the Notice to Keeper did not specify the period of parking. "The notice must— (a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;". The period of parking is required to be stated in the NTK and it was not.

- Contrary to the requirements of paragraph 9 (2) (f), the Notice to Keeper did not: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''. BOTH the above prescribed requirements must be stated in the NTK and they were not.

- Contrary to the requirements of Paragraph 9 (2) (i), the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.

In any case, as explained above, the document described as a 'NTK' arrived too late. Consequently, MET has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If MET should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

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.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle"
Paragraph 4 (1): The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2): The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
Paragraph 6 (1): 'The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(b)has given a notice to keeper in accordance with paragraph 9.

The operator has failed to meet this condition for keeper liability due to the multiple flaws in the NTK. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. In page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."


2) BPA Code of Practice - non-compliance to guidelines
The BPA Code of Practice (CoP) point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."


3) No evidence of period parked
The NtK clearly states the vehicle was parked during the relevant period. PoFA 2012 Schedule 4 Para 9 refers at numerous times to the period of parking. By virtue of the nature of a ANPR system recording only entry and exit times, MET are not able to definitively state the period of parking. Contrary to the mandatory provisions of the BPA code of practice, there is no record to show that the vehicle was parked longer than the time allowed PLUS the mandatory grace periods. These are a minimum of 10 minutes to leave the car park and a similar period to cover the period after the vehicle parks, finds signage, reads the signage, and decides whether to accept or reject the terms offered within.

4) Reason given for charge is incorrect
The NtK states that the reason for issuing the charge notice is: "Not in restaurant (ctv)". This reason for charge is incorrect as the occupants of the vehicle made use of the restaurant on the day.

5) No Landowner Authority
I question MET’s authority from the landowner to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put MET to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question MET’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that MET is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that MET are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put MET to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 60 minutes in a car park.

I require MET to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.


6) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible.

The BPA Code of Practice states that— “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. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

There were no conspicuous signs throughout the site. I put MET to strict proof on this point. As well as a site map they must show photographs of the signs as the driver would see them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car park, the entrance to the car park, or the layout of the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore, as stated, a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore the driver has not been identified and I have no obligation to assist an operator in this regard, even if I was certain which of several drivers could have used the car that day. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

Paragraph 2 (3): For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

In fact, their signs are not visible from a car seat before parking and the words are completely unreadable and incapable of forming a contract before the act of parking (it is trite law that afterwards - after parking in this case - is too late).

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.


7) The ANPR system is neither reliable nor accurate.
The MET evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. To capture a vehicle entering Harefield Retail Park car park and actually crossing the boundary into the land in question, it would appear that the only conceivable location for a camera would be directly across the road from the entrance therefore outside the car park and taken from public land.

In any case it is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic. If they in fact offered a pay and display system which the driver can only access after parking, and which is when the actual action and period of parking commences. i.e. when the vehicle is stationary, and when the clock should start from. The exit photo image of the rear number plate cannot be evidence of actual 'parking time' at all, and has not been shown to relate to the same parking event.

Additionally you cannot discount that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website; www.britishparking.co.uk/How-does-ANPR-work

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require MET to provide records with the location of the cameras used in this instance, together 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. As the parking charge is founded entirely on 2 photos of the vehicle number plate allegedly entering and leaving the car park at specific times (not shown within the photographic images), it is vital that MET produces evidence in response to these points.

In addition to showing their maintenance records, I require MET to show evidence to rebut the following assertion. I suggest that in the case of this vehicle being in that car park, a local camera took the image but a remote server added the time stamps. 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 the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photo images, I put MET to strict proof to the contrary.


I respectfully request that this parking charge notice appeal be allowed and await your decision.
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s1214lang
post Wed, 7 Mar 2018 - 20:41
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Can anyone please provide some feedback on my appeal above; will really appreciate it. Especially points 2, 3, and 4. I've only got a few days left before I have to send of the appeal.

Thank you
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nosferatu1001
post Thu, 8 Mar 2018 - 09:45
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POPLA appeals get too long now to fully review them.

2) Youve not actually said anything here. You havent said what they arent doing. The CoP refernce is use to back up your point, it isnt your point by itself.
3) You start off talking about period parked, whic his a POFA compliance failure -so shoudl go in 1

You need to have this be "time vehcile parked did not exceed the allowed time plus the mandatory grace periods as required under the BPA CoP -then give the ref.
4) I would state - charge issued incorrectly
Maybe include a witness statement from an occupant confirming they were in the restaurant that day. Thats evidence that the PPC will not have.

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s1214lang
post Sat, 10 Mar 2018 - 22:06
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QUOTE (nosferatu1001 @ Thu, 8 Mar 2018 - 09:45) *
POPLA appeals get too long now to fully review them.

2) Youve not actually said anything here. You havent said what they arent doing. The CoP refernce is use to back up your point, it isnt your point by itself.
3) You start off talking about period parked, whic his a POFA compliance failure -so shoudl go in 1

You need to have this be "time vehcile parked did not exceed the allowed time plus the mandatory grace periods as required under the BPA CoP -then give the ref.
4) I would state - charge issued incorrectly
Maybe include a witness statement from an occupant confirming they were in the restaurant that day. Thats evidence that the PPC will not have.


Thank you very much. Totally understand that the appeals are quite long.

I'll remove point 2 then, as they seem to have provided date and time stamped images. Will upload the edited version.

Thanks once again.
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s1214lang
post Mon, 12 Mar 2018 - 13:22
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QUOTE (nosferatu1001 @ Thu, 8 Mar 2018 - 09:45) *
Maybe include a witness statement from an occupant confirming they were in the restaurant that day. Thats evidence that the PPC will not have.


Firstly, how do include a witness statement? Is there a template I can follow? Does it go as a separate attachment? If its a separate attachment, do I mention in the main body text of the appeal that there is a witness statement attached?

Next, where can I find the latest copy of the BPA CoP. The BPA website doesn't seem to be working. None of the pdfs from this link open: BPA Code of Practice. I want to get the right clauses/paras for section 3 of my appeal (have highlighted in red below).

Lastly, have included another copy of the appeal below. Have highlighted the changes in red. Will be really really grateful if you can please check these sections. My 28 days end on Wednesday (14 March). I have to get my appeal in by then. Thanks a lot again.

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued by MET Parking Services (MET). I would like to have the parking charge notice cancelled based on the following grounds:

1) No Keeper Liability
2) The Appellant has not been shown to be the individual liable
3) BPA Code of Practice - non-compliance to guidelines
4) No evidence of period parked – did not exceed allowed time plus mandatory grace period

5) Charge issued incorrectly
6) No landowner authority
7) Lack of signage - unclear signage
8) The ANPR system is neither reliable nor accurate


1) No Keeper Liability

The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 ("POFA") and was not served within the relevant period of 14 days, contrary to paragraph 9 (4) in Schedule 4 of the POFA. The NTK was issued/posted on 30/01/2018, a Tuesday, and therefore not delivered until 2 working days later, detailed in paragraph 9 (6), and therefore not delivered until 01/02/18, Thursday, at the earliest. Date of Event is 22/12/2017, so NTK served after 41 days instead of the required 14 days.

Although Schedule 4 of the POFA gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

The Notice to Keeper issued by the operator does not meet the strict requirements of paragraph 9. The late timing of the notice and its non-compliance of requirements under paragraph 9 is fatal for 'keeper liability'.

In terms of wording:

- Contrary to the requirements of paragraph 9 (2) (a), the Notice to Keeper did not specify the period of parking. "The notice must— (a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;". The period of parking is required to be stated in the NTK and it was not.

- Contrary to the requirements of paragraph 9 (2) (f), the Notice to Keeper did not: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''. BOTH the above prescribed requirements must be stated in the NTK and they were not.

- Contrary to the requirements of Paragraph 9 (2) (i), the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.

In any case, as explained above, the document described as a 'NTK' arrived too late. Consequently, MET has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If MET should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

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.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle"
Paragraph 4 (1): The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2): The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
Paragraph 6 (1): 'The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(b)has given a notice to keeper in accordance with paragraph 9.

The operator has failed to meet this condition for keeper liability due to the multiple flaws in the NTK. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. In page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."


2) The Appellant has not been shown to be the individual liable
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.

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.

In this case, no other party apart from an evidenced driver 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. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.

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.''


3) BPA Code of Practice - non-compliance to guidelines
The BPA Code of Practice (CoP) point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The parking charge notice in question contains photographs of the vehicle. They do not clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite MET to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.


4) No evidence of period parked – did not exceed allowed time plus mandatory grace period
The NtK clearly states the vehicle was parked during the relevant period. POFA Schedule 4 Para 9 (2) (a) refers at numerous times to the period of parking. By virtue of the nature of a ANPR system recording only entry and exit times, MET are not able to definitively state the period of parking.

Contrary to the mandatory provisions of the BPA code of practice (clause 13.2 & 30.2), there is no record to show that the vehicle was parked longer than the time allowed PLUS the mandatory grace periods. These are a minimum of 10 minutes to leave the car park and a similar period to cover the period after the vehicle parks, finds signage, reads the signage, and decides whether to accept or reject the terms offered within. The vehicle parked did not exceed the allowed time plus the mandatory grace periods as required under the BPA CoP clause 13.2 & 30.2.



5) Charge Issued Incorrectly
The NtK states that the reason for issuing the charge notice is: "Not in restaurant (ctv)". This reason for charge is incorrect as the occupants of the vehicle made use of the restaurant on the day.


6) No Landowner Authority
I question MET’s authority from the landowner to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put MET to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question MET’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that MET is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that MET are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put MET to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 60 minutes in a car park.

I require MET to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.


7) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible.

The BPA Code of Practice states that— “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. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

There were no conspicuous signs throughout the site. I put MET to strict proof on this point. As well as a site map they must show photographs of the signs as the driver would see them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car park, the entrance to the car park, or the layout of the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore, as stated, a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore the driver has not been identified and I have no obligation to assist an operator in this regard, even if I was certain which of several drivers could have used the car that day. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

Paragraph 2 (3): For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

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:

http://imgur.com/a/AkMCN

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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbC...%2Bsign_001.jpg

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.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/t...s/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-l...lity-chart.aspx

''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:

http://www.ebay.co.uk/gds/Outdoor-Dimensio...75068392/g.html

''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.

8) The ANPR system is neither reliable nor accurate.
The MET evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. To capture a vehicle entering Harefield Retail Park car park and actually crossing the boundary into the land in question, it would appear that the only conceivable location for a camera would be directly across the road from the entrance therefore outside the car park and taken from public land.

In any case it is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic. If they in fact offered a pay and display system which the driver can only access after parking, and which is when the actual action and period of parking commences. i.e. when the vehicle is stationary, and when the clock should start from. The exit photo image of the rear number plate cannot be evidence of actual 'parking time' at all, and has not been shown to relate to the same parking event.

Additionally you cannot discount that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website; www.britishparking.co.uk/How-does-ANPR-work

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require MET to provide records with the location of the cameras used in this instance, together 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. As the parking charge is founded entirely on 2 photos of the vehicle number plate allegedly entering and leaving the car park at specific times (not shown within the photographic images), it is vital that MET produces evidence in response to these points.

In addition to showing their maintenance records, I require MET to show evidence to rebut the following assertion. I suggest that in the case of this vehicle being in that car park, a local camera took the image but a remote server added the time stamps. 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 the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photo images, I put MET to strict proof to the contrary.


I respectfully request that this parking charge notice appeal be allowed and await your decision.
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nosferatu1001
post Mon, 12 Mar 2018 - 16:11
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Witness statement - include it within the appeal, as an appendix and referenced from the text. No there is no format. You just add the statement of truth text you can easily find by searching.

No idea on CoP right now.
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s1214lang
post Tue, 13 Mar 2018 - 21:13
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Can anyone please check the draft witness statement below. Just wondering if this will in any way point towards the identity of the driver. From the images as part of the PCN, two occupants of the vehicle are seen. One occupant is being identified here. Will this, in any way, point towards the identity of the driver?

Will really appreciate a quick reply. My 28 days for POPLA appeal end tomorrow.

WITNESS STATEMENT

I, [Name] of [Address] am a witness in this case. I was an occupant of the vehicle [VRM] on [date] at the period of parking prior to [exit time] at McDonald’s Southall, London. The facts in this statement come from my personal knowledge, except where I indicate to the contrary.

I make this Witness Statement in support of the registered keeper’s [of VRM] defence in this claim.

1. During the period of parking on the date, time, and location mentioned above, the occupants of the vehicle were in the restaurant.

I believe that the facts stated in this witness statement are true.

[Name]
[Sign]
[Date]
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nosferatu1001
post Wed, 14 Mar 2018 - 07:57
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If the relationship of the Witness to the driver is not stated or inferred, then it cannot identify the driver.
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s1214lang
post Wed, 14 Mar 2018 - 08:34
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QUOTE (nosferatu1001 @ Wed, 14 Mar 2018 - 07:57) *
If the relationship of the Witness to the driver is not stated or inferred, then it cannot identify the driver.


Thanks for the reply.

Final question. In the car park, they use CCTV to track the movements of the occupants and use these images for enforcement purposes. However, I don't think any of the signage in the car park says this (atleast definitely not the obvious ones). Surely they should mention that they use CCTV to track the occupants' movements apart from ANPR. Where can I mention this in my appeal, and how can I better word it?

Thanks!
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ostell
post Wed, 14 Mar 2018 - 08:47
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The CCTV cameras, as distinct from the ANPR cameras, will be under the control of the landholders and not the PPC. There should be warning notices around, somewhere, on the site about the use of CCTV. Simply put the CCTV is nothing to do with the PPC and they have no requirement to mention it.

You can check with the ICO about who is registered for CCTV on the site.
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s1214lang
post Wed, 14 Mar 2018 - 11:11
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QUOTE (ostell @ Wed, 14 Mar 2018 - 08:47) *
The CCTV cameras, as distinct from the ANPR cameras, will be under the control of the landholders and not the PPC. There should be warning notices around, somewhere, on the site about the use of CCTV. Simply put the CCTV is nothing to do with the PPC and they have no requirement to mention it.

You can check with the ICO about who is registered for CCTV on the site.


In that case, can the PPC use the CCTV for enforcement purposes? There might have been signage to say that CCTV cameras are used on site. This could imply it is just for security purposes, not to enforce the parking charge. As they are using these images to enforce the parking charge, won't they have to mention that to the drivers? Just checking, I am not sure, hence.

Excuse my ignorance, ICO is...?

Thanks for your reply.
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nosferatu1001
post Wed, 14 Mar 2018 - 12:59
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...Easily discoverable with a short google search

Theoretically they have to state what theyre using the cameras for. Not doing so would be a breach of the DPA.
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ostell
post Wed, 14 Mar 2018 - 13:25
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ICO = Information Commissioner's Office.

If it's not the PPC that is registered for the cameras then whoever is registered as the owner of the CCTV cannot give the information to another entity. Search here or raise your concern with the ICO.

The entry on the register states what the cameras are used for.
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s1214lang
post Wed, 14 Mar 2018 - 19:22
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Thanks a lot for both your quick replies.

QUOTE (nosferatu1001 @ Wed, 14 Mar 2018 - 12:59) *
...Easily discoverable with a short google search

Theoretically they have to state what theyre using the cameras for. Not doing so would be a breach of the DPA.


I agree, I probably should have checked. Just replied quickly on my phone at work.

Should I mention that statement on the appeal?

QUOTE (ostell @ Wed, 14 Mar 2018 - 13:25) *
ICO = Information Commissioner's Office.

If it's not the PPC that is registered for the cameras then whoever is registered as the owner of the CCTV cannot give the information to another entity. Search here or raise your concern with the ICO.

The entry on the register states what the cameras are used for.


Have searched through the register. Nothing comes up for the address of the McDonald's. There is an entry for MET. MET Entry
Also searched just for McDonald's. Loads of entries came up, but not this McDonald's. Not sure who the landowner is.


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s1214lang
post Tue, 3 Apr 2018 - 20:40
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Heard back from POPLA today, 20 days after appeal, MET do not wish to contest. Thank you very much to all of you guys; you've all been great help.

This is post get archived somewhere now?
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