I won at POPLA today. Here is my appeal It covers a lot But its worth a read!
POPLA REF EAT ME!
CAR REG Up yours open parking
As the registered keeper of the car mentioned above I would like to appeal and have cancelled the parking charge notice issued by Open Parking Ltd for a number of reasons outlined below:
1. Open parkingLtd has no contractual authority
2. The charge is punitive
3. ANPR Accuracy and Compliance
4. No Contract was entered into between the Open Parking and the Driver or Registered keeper
5. Unfair terms of contract
6. Without a contract
7. Non BPA compliant signage
1. Open ParkingLtd has no contractual authority
In the notices they have sent me Open ParkingLtd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require Open Parking Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that Open Parking Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.
2. The charge is punitive
In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against me or the driver.
3. Camera Accuracy and Compliance
The BPA code of practice does not state that you can use photographic evidence of the type Open Parking are using taken from hand held devices. It is however mentioned in the code of practice for Scotland and Northern Ireland paragraph 31.1 . I put Open Parking to proof that this is an acceptable method of collecting evidence as per the BPA code of practice. If it is the case then. I require Open Parking Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle in the car park at specific times. It is vital that Open Parkng Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parkingeye vs Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require open parking Ltd in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a camera took the image. There is no proof that the time stamp added is actually the exact time of the image. 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 "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.
In addition, the unreliable/unsynchronised system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR) although the method used was not ANPR there still must be a method in place that will protect the public and bearing in mind that the only information in the BPA Code of practice I quote.
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''
At this location, there are merely parking attendants with cameras. No signs at the car park that clearly tell drivers about this technology nor how the data captured by the cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.
5. No Contract was entered into between Open Parking and the Driver or Registered keeper
Although I was not the driver I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Open Parking clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of Open Parking Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Open Parking Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that cameras are in use on this site.
Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.
I request that Open Parking Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.
6. Unfair terms of contract
Although there is no contract between Open Parking and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:
2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.
5. (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
5. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one Open Parking Ltd are suggesting. A company such as Open Parking needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.
7. Without a contract
Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Open Parking Ltd could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.
8. Non BPA compliant signage
The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver
Following the receipt of this charge, I have personally visited the site in question. I believe the signs and any core parking terms that the company are relying upon are in the wrong position as there are NO entrance signs. See photograph “1 entrance no signs”. The only sign near to the entrance showing terms and conditions is on the wall after the entrance. See photograph “ 2 Bicycle contra flow and signs”. The sign is after the entrance gate on the right, and placed to the left of the driver after the turn has been made. This entrance is usually busy with cars and pedestrians and also has a bicycle contra flow as you can clearly see in the foreground. Whilst observing for all of the above it would be very difficult to even notice the sign let alone read it.
Once inside the car park there are signs throughout the car park that do not show the terms and conditions. See photograph “3 parking sign in car park no terms” the sign suggests that the terms and conditions are posted above the sign. However there are NO terms and conditions placed on or near to the sign see photo “4 no terms and conditions above”. Nor any directions to a place where the terms and conditions can be read and an informed decision made as to whether or not to park there. Open parking assert in their appeal rejection letter that the terms and conditions are provided throughout the car park see photo” 5 Letter from open parking”. This is obviously not the case and I believe Open Parking are in clear breach of the BPA COP 18 to 18.3. As they are breaching BPA COP they are also in breach of any contract they claim to have with the land owner as part of this contract must say they will uphold the BPA COP.
I believe the signs failed to properly and clearly warn/inform the driver see “6 open parking evidence of their own sign” of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.
As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
The car was being delivered to me by a valeting company. The driver appeared at the porters lodge and was directed by staff in order for the vehicle to be delivered to me. He entered the car park, came in to the laboratory looking for me and could not find me. He then drove back out of the gate and appeared at the porters lodge once again. They directed him back to the same place. He then returned and entered the laboratory and delivered the keys to me. We returned to the car so that I could move it and the PCN had been delivered. I mentioned this to Open Parking regarding the length of time they allow for a grace period as the signs do not sufficiently inform drivers of the terms and conditions. They say that the car was there for 10 minutes. I believe the car entered the car park on the first occasion and the first photos were taken. The car left and re-entered the car park and the second set of photos were taken to record a ten minute stay. I do not believe the car was there for ten minutes I also ask Open Parking to provide proof that the car was there for that amount of time and what the grace periods are for this car park, bearing in mind that the terms and conditions are posted once only and outside the car park at that. I suggest it would take longer than ten minutes to find the sign read and understand it then return to move the car. I was not driving and I cannot name the driver as I don’t know his name and the company will not tell me his name neither.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
I respectfully request that this parking charge notice appeal be allowed and await your decision.