It still needs tidying up...
APPEAL RE:
Group Nexus Parking Charge Ref No.
CAR PARK on 16 Jan 2024,
VEHICLE REG:
Dear Sirs
I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge; nor is it enforcable on the following grounds and would ask that they are all considered.
1. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.
2. There is no evidence that the parking company has a contract with the landowner which permits them to levy charges on motorists up to pursuit of these charges through the courts.
3.The signage at the car park is not compliant with the British Parking Association standards and as such there is no valid contract between the parking company and the driver.
4.Group Nexus signage states that an ANPR System ‘may’ be used in the car park and is therefore ambiguous. The Operator is actually trying to allege a 32 minute overstay (above the alleged 180 minute 'Grace Period'). I call into question the ANPR system accuracy.
5.The Notice to Keeper does not comply with PoFA 9(2)(e)(i) .
Here are the detailed appeal points.
1.No right to charge motorists for overstaying
Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.
2.No valid contract with landowner
It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority: I request that the parking company produce a copy of the contract with the landowner that shows POPLA that they have, indeed been granted such authority.
I note from the Group Nexus Signage that the parking is ‘managed and operated on behalf of Savills by CP Plus’ - and therefore not directly by the landowner, but by a lessee / tenant of the land. I request proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in.
It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I request that if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company
3.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 receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read and understand when driving into this car park.
There is one small sign at the entrance which indicates that there are parking restrictions - but this informatiuon is not specific or definitive.
The remaining signage is sparesely located high up on lamp posts. There are a 6 lamp posts having these signs covering an area roughly 5,500sq.m.
There are no signs along the periphery of this section of parking area - the boundary with the main road. I believe the signs failed to properly and clearly warn/inform the driver 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 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.
4.ANPR Accuracy and Compliance is questionable and needs to be proven as accurate and in compliance.
So I require the Operator to present records which prove:
- the Manufacturers' stated % reliability of the exact ANPR system used here.
- the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.
This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times and this Operator is are expecting me to believe their system has a zero failure rate and zero buffering delay.
The Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was '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.
I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", 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 accurately. Therefore I contend that this ANPR "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 ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ 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 a couple of secret small cameras up high on a pole. The signs at the car park are not clear about how this technology is employed nor how the data captured by ANPR cameras will be used.
As such, 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 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.The Notice to Keeper that I received does not follow the requirements of PoFA - specifically Paragraph 9(2)(e)(i) of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).
This states that the Notice to Keeper (NtK) must include a specific invitation to the keeper to pay the charge. This requirement serves to ensure that the keeper understands their liability and has a clear course of action.
The law explicitly requires a clear and specific invitation for the keeper to either:
• Pay the parking charge, or
• Provide the name and address of the driver (if the keeper was not the driver).
The NtK from Group Nexus was not clear in this regard. There is no mention in the NtK that I, as the Keeper, have any opportunity to pay the charge. There is merely a request for me to identify the driver.
The NtK states that after a 28 days beginning with the day after that on which the Charge is given, they have the right to recover any unpaid Parking Charge from the Keeper.
This period extends past the period in which the reduced amount may be paid.
Group Nexus cannot simply rely on the fact that the Parking Charge Notice (PCN) is addressed to the Keeper to satisfy PoFA paragraph 9(2)(e)(i).
Group Nexus cannot claim keeper liability under PoFA because they fail to meet the explicit requirements of 9(2)(e)(i).
This concludes my appeal.
