Euro Car Parks - POPLA 2018 Appeal

Hi All,

On Christmas Eve THE DRIVER was shopping in Manchester and overstayed by 20 mins on a 2 hour pay and display car park.

They sent a letter as the ANPR cameras had been in operation.

The letter they sent seems to be the pretty standard (with cropped licence plate).

The driver knows they're in the wrong to overstay and if the fine would have been smaller then they probably would have paid it but the car park was around £3 for 2 hours and for overstaying by just 20 mins they have PCN'd for £100 reduced to £60 for quick payment. This is more of a principle thing to fight.

Anyway the registered keeper has sent them an appeal which as expected, was rejected and they have issued the registered keeper with a POPLA number. The POPLA website advises not to use other peoples words or templates but the driver had no other justification of overstaying other than loosing track of time and they doubt they'd accept this excuse. The registered keeper have sent this to POPLA with the help of Pepipo and MSE forums:


Vehicle Registration Number xxxxxx PCN Reference xxxxxxx
Issued by Euro Car Parks Limited
As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Euro Car Parks issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1) No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012, was served too late and no 'Notice to Driver' was served whilst the car was stationary.
2) No Landowner Authority
3) BPA Code of Practice - non-compliance
4) The unclear signs and lack of proof of any legitimate interest/any right to sue customers distinguishes this matter from the Parking Eye v Beavis case.
5) Lack of adequate signage/incorrect signage !!!8211; no contract with driver.
6) The ANPR system is neither reliable nor accurate.
************************************************** **********
1) No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012, was served too late and no 'Notice to Driver' was served whilst the car was stationary.
Although Schedule 4 of the Protection of Freedoms Act 2012 (!!!8220;POFA!!!8221;) gives a creditor the right to recover any unpaid parking charges from a vehicle!!!8217;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.
I set out below the requirements for a 'Notice to Driver' as set out in Schedule 4 which clearly requires either:
- Under paras 7 & 8: a windscreen PCN (in person, issued on the car before it leaves the site) followed by a postal 'Notice to Keeper' served no sooner than 29 days later,
OR
- Under paragraph 9: a compliant postal 'Notice to Keeper' to be served within 14 days of the event.
Neither of these two mandatory routes were followed in this case. Paragraph 7 states:
7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(4)The notice must be given!!!8212;
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,
by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.
No such Notice to Driver was served. Instead, a hybrid document the operator called a 'PCN' was posted. This neither matched the mandatory requirements of paragraph 7 as a 'Notice to Driver' (because it was posted, not served whilst the vehicle was stationary) nor does it meet the strict requirements of paragraph 9 if it was intended to be a 'Notice to Keeper' (NTK).
It is clear that - notwithstanding the incorrect and missing statutory wording for a NTK - the operator does not in any event, intend this to be taken to be a NTK because a month later they then served another postal document, this one WAS called 'Notice to Keeper'. However, as it arrived so late it is too late for keeper liability because in the absence of any windscreen PCN, any NTK must arrive by day 14 after the parking event. The late timing and non-compliant wording of this NTK is fatal for 'keeper liability'.
In terms of wording:
- Contrary to the requirements of Paragraph 9(2)(b), the Notice to Keeper did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.
- Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver''
- The NTK fails in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given!!!8212; ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...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''
- 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 iMail actually put the NTK in the post via Royal Mail.
In any case, as explained above, the document described as a 'NTK' arrived a month too late - as if it was one which followed a windscreen PCN - yet this operator has failed to apply any windscreen Notice to Driver. Consequently, Euro Car Parks has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.
If Euro Car Parks 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:
[LINK] NEW USER CANNOT POST LINK
Understanding keeper liability
!!!8220;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 !!!8216;reasonable presumption!!!8217; 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.!!!8221;
The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle: 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!!!8212;
(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:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)!!!8212;
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b)has given a notice to keeper in accordance with paragraph 9.
The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. 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) No landowner Authority:
I question Euro Car Parks Limited!!!8217;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 Euro Car Parks Limited 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 Euro Car Parks Limited!!!8217;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 !!!8216;ticket!!!8217; vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Euro Car Parks Limited 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 Euro Car Parks Limited are certainly not empowered by the landowner to sue customers and visitors in a P&D 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:
!!!8220;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 Euro Car Parks Limited to strict proof of compliance with all of the above requirements.
I require Euro Car Parks Limited 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 !!!8211; not merely an !!!8216;agreement!!!8217; with a non-landholder managing agent !!!8211; otherwise there is no authority.

3) BPA Code of Practice - further non-compliance - photo evidence. The BPA Code of Practice 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 two photographs of the vehicle number plate. Neither of these images contains a date and time stamp on the photographs nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as any particular location at all).
The time and date stamp has been inserted into the letter underneath (but not part of) the photographs. The images have also been cropped to only display the number plate. As these are not the original images, I require Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

4) The unclear signs and lack of proof of any legitimate interest/any right to sue customers distinguishes this matter from the ParkingEye v Beavis case.
BOTH parties are obliged to show how any case law they wish to rely upon, applies to
and assists their own case. I can demonstrate that the ParkingEye v Beavis case assists my appeal.
The reference in the Beavis case, to the need for clear, unambiguous terms and the parking charge and restrictions being copiously displayed and in 'large lettering' assists my position. Each case must turn on its own facts and much depends upon how an operator presents its own case because every car park and every charge and documents and dates and facts and interests, are different.
I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:
''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''
Yours sincerely
R Reeve
POPLA Administrative Team
The point here is, the new POPLA Service cannot and must not make any wrong assumptions about liability and certainly are not empowered as an ADR, to impose the Beavis case arbitrarily upon all cases as if it is a 'silver bullet'. No case law about a single parking charge in a particular car park with different facts and its own signage, can possibly be a silver bullet striking out appeals regarding all other car parks/charges.
There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' automatically supersedes all other points of appeal about other parking charges in other car parks. It certainly does not 'supersede' all other points and each case must still turn on its own facts (and I am not even arguing about any 'GPEOL'!). Much more was said in the Parking Eye v Beavis judgment than findings about 'GPEOL' as opposed to 'commercial justification' and it did not shoot down any other parking charges, by default.
The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine where I state that, due to the facts of THIS charge in THIS car park with these signs and this flawed rationale for the sum and lack of legitimate interest and authority, the Beavis case does not assist them at all.

5) Lack of adequate signage/incorrect signage !!!8211; no contract with driver.
The signs were not visible from a distance and the words are unreadable. I put Euro Car Parks to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would see them on entering the car park. In the rejection letter, this operator showed generic archive pictures of a sign. This is no indicator of the signs at this site on the day, nor how they appear to a driver from a driver's seat.
A Notice is not imported into the contract unless brought home so prominently that the party !!!8216;must!!!8217; 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 the registered keeper; 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 of the Protection of Freedoms Act (POFA) 2012, it is mandatory that the driver(s) are unambiguously and clearly informed by way of !!!8220;adequate notice!!!8221; of terms and the parking charge itself:
!!!8220;adequate notice!!!8221; means notice given by the display of one or more notices which!!!8212; (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.''
Euro Car Parks alleges this was the site of a 'contract' being formed. 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).
A Notice is not imported into the contract unless brought home so prominently that the party !!!8216;must!!!8217; have known of it and agreed terms. I question the fact that the driver saw any sign like that and so there was no consideration or acceptance and no contract agreed between the parties.
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.

6) The ANPR system is neither reliable nor accurate.
The ECP 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 Shell Gatwick
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; [LINK] NEW USER CANNOT POST LINK

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some !!!8216;drive in/drive out!!!8217; 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 ECP 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 ECP produces evidence in response to these points.
In addition to showing their maintenance records, I require ECP 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 ECP to strict proof to the contrary.
I have made my detailed submission to show how the applicable law (POFA), case law (Beavis) and the BPA Code of Practice undoubtedly supports my appeal, which I submit should now be determined in my favour.
Yours sincerely

Im not sure if this appeal will be upheld or rejected but the register keeper wanted to share and will post the decision of the appeal which theyI hope will help others with their 2018 appeals!