Much appreciated for all the help as english isn't my first language.
Below is my updated appeal letter:
POPLA ref:
UKPC ref:
Vehicle registration:
I am the Registered Keeper (RK) of the vehicle and I dispute the Parking Charge Notice (PCN) on the following grounds:
(1) Consideration and Grace Periods
The images were shown the vehicle was present for 9 seconds at the location. According to BPA CoP 13.1 there should be considered within a reasonable grace period for loading/unloading activities.
BPA CoP 13.1
The driver must have the chance to consider the Terms andConditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not
to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract.
The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes.
(2) No evidence of period of parking in the Notice to Keeper
Based on the requirements set out under PoFA 9(2)(a) & BPA CoP 29.10, 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 images were shown the vehicle was present for 9 seconds at the location. A single point in time does not describe a range or duration, which is what a "period" implies. This does not fully satisfy the requirement of specifying a "period of parking." And it was insufficient to consider any alleged breach of contract.
(3) Alteration of photographic evidence
On the Notice to Keeper, the evidential photo is showing that the vehicle as well as any other text elements were proportionally distorted, cropped / altered.
That is in breach of BPA Code of Practice (CoP) section 21.5a which clearly states:
All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.
And also the private parking sector single Code of Practice:
Use of photographic evidence
7.3(b) the images bear an accurate time and date stamp;
7.4. Alteration of photographic evidence
Parking operators must not digitally or by other means alter images used as photographic evidence other than:
a) to blur faces or the VRMs of other vehicles in the image in accordance with their GDPR obligations; or
b) to enhance the image of the VRM for clarity, but not to alter the letters and numbers displayed.
This point was upheld in a recent POPLA appeal by assessor Gayle Stanton:
"POPLA code: 2413353469"
Decision: Successful
Assessor Name: Gayle Stanton
Assessor summary of operator case
The operator has issued the PCN because the vehicle was parked on the site and the pay and display permit did not cover the date and time of parking.
Assessor summary of your case
The appellant has raised the following grounds of appeal:
• The signage is inadequate
• The Notice to Keeper (NTK) does not meet PoFA requirements.
• The NTK does not accurately describe the circumstances so there is no keeper liability.
• The operator has not shown that the individual it is chasing is the driver.
• No landowner authority
• Grace period- Non compliance with the British Parking Association (BPA).
• No evidence of the period parked.
• Images of the vehicle contained within the NTK are not compliant with the BPA.
• The ANPR system is not reliable or accurate.
The appellant has provided a document detailing their appeal and they have commented on the operator’s case file.
Assessor supporting rational for decision
In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly. I am allowing this appeal, with my reasoning outlined below:
The Images of the vehicle contained within the NTK are not compliant with the BPA. The appellant has stated in the comments that although the operator has provided full date stamped photographs in the case file, the images on the NTK are not compliant.
I acknowledge the appellant’s grounds of appeal and I have reviewed the evidence provided by the operator. The British Parking Association (BPA) Code of Practice Section 21.5a states:
” 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.
I have reviewed the copy of the NTK provided by the operator and I am not satisfied that the images of the vehicle number plate on the NTK are compliant with Section 21.5a of the BPA Code of Practice.
These images are not date stamped and after seeing the full images in the case file they appear to have been digitally altered or cropped to fit on the NTK. This is especially apparent on the colour image on the NTK.
The image recorded of the vehicle entering the site is also not very clear I note that the appellant has raised further grounds for appeal in this case, however as I have allowed the appeal for this reason, I have not considered them. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal.
(4) No evidence of landholder authority.
The operator is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the "relevant land" to the operator.
It is not accepted that the operator has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this operator to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this operator has standing to enforce such charges in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.
The operator is put to strict proof of full compliance with the BPA Code of Practice As this operator does not have proprietary interest in the “relevant land” then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules.
A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply.
Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and, of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement). Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
(a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
(b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
(c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
(d) who has the responsibility for putting up and maintaining signs
(e) the definition of the services provided by each party to the agreement
UKPC has not met the keeper liability requirements and therefore keeper liability does not apply. As UKPC have not complied fully with the requirements of PoFA, they have also breached the BPA Code of Practice at 2.4, 21.2, 21.12 and 21.13. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were, liability cannot flow from the driver to the keeper.
This POPLA appeal highlights serious omissions and failures by the operator which show that the PCN has been issued incorrectly. The evidential photo in the NtK has been altered or cropped which is a clear breach of the BPA CoP section 21.5a. There is no evidence of period of parking in the NtK and it was insufficient to consider any alleged breach of contract and the operator has not shown that it has any authority to issue PCNs in its own name on behalf of the landowner.
These points prove that the PCN has been issued incorrectly and the POPLA assessor should take them into account when making their assessment of the validity of the charge.
