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  • FIRST POST
    • mae
    • By mae 18th Mar 17, 9:27 AM
    • 1,418Posts
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    mae
    Euro Car Parks PCN guidance please
    • #1
    • 18th Mar 17, 9:27 AM
    Euro Car Parks PCN guidance please 18th Mar 17 at 9:27 AM
    Hi

    I have received a PCN for being 34 minutes over the authorised 180 minutes.

    I was doing some work on my laptop in Costa...I have just checked my Costa App and it shows I was in there that day via the points I receive..I didn't realise there was a time limit on the free parking :/ I have rung the manger of Costa but there is nothing he can do.

    Anyway I have read the first post for guidance (love this forum people are so helpful) and I just want to double check that I am right that my first step is to send the letter (copied below) via their online appeals? Is this the correct first letter to send to Euro?

    Dear Sirs

    Re: PCN No. ....................

    I challenge this 'PCN' as keeper of the car.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

    Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

    I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,
    Last edited by mae; 18-03-2017 at 9:30 AM.
Page 1
    • Umkomaas
    • By Umkomaas 18th Mar 17, 9:52 AM
    • 13,145 Posts
    • 20,542 Thanks
    Umkomaas
    • #2
    • 18th Mar 17, 9:52 AM
    • #2
    • 18th Mar 17, 9:52 AM
    Yep, that's the one for a BPA operator. Don't expect it to get you a cancellation at this stage (hardly any operator ever upholds an initial appeal), but it will hook you a POPLA code where you have a much greater chance of getting this cancelled.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • mae
    • By mae 16th Apr 17, 9:37 AM
    • 1,418 Posts
    • 814 Thanks
    mae
    • #3
    • 16th Apr 17, 9:37 AM
    • #3
    • 16th Apr 17, 9:37 AM
    Ok so ive had the letter rejecting my appeal but I have the POPLA verification code so Im off to see on the board what I do next. I must admit part of me was ike would it be easier just to pay it (I wont if I can help it) so I wonder how many do end up paying
    • Fruitcake
    • By Fruitcake 16th Apr 17, 11:10 AM
    • 39,235 Posts
    • 78,383 Thanks
    Fruitcake
    • #4
    • 16th Apr 17, 11:10 AM
    • #4
    • 16th Apr 17, 11:10 AM
    Ok so ive had the letter rejecting my appeal but I have the POPLA verification code so Im off to see on the board what I do next. I must admit part of me was ike would it be easier just to pay it (I wont if I can help it) so I wonder how many do end up paying
    Originally posted by mae
    Most people who come here and get forum help end up with the 100% MSE discount. Some scammers are easier to beat than others, but most can be beaten.

    I am assuming you/the alleged event are in England or Wales. The advice for the rest of the UK is different.
    Last edited by Fruitcake; 16-04-2017 at 11:12 AM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 16th Apr 17, 8:23 PM
    • 46,959 Posts
    • 60,319 Thanks
    Coupon-mad
    • #5
    • 16th Apr 17, 8:23 PM
    • #5
    • 16th Apr 17, 8:23 PM
    Ok so ive had the letter rejecting my appeal but I have the POPLA verification code so Im off to see on the board what I do next. I must admit part of me was ike would it be easier just to pay it (I wont if I can help it) so I wonder how many do end up paying
    Originally posted by mae
    No-one here pays! So stay here and win!

    Search the forum for 'ECP POPLA' to find recent examples and also read post #3 of the NEWBIES thread, where the template POPLA appeal points are there for copying.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mae
    • By mae 24th Apr 17, 9:52 AM
    • 1,418 Posts
    • 814 Thanks
    mae
    • #6
    • 24th Apr 17, 9:52 AM
    • #6
    • 24th Apr 17, 9:52 AM
    Oh my.... I feel overwhelmed haha how much is there to read...

    So would someone mind baby stepping me please

    So I have the POPLA Code and the fine is from Euro Car Parks and they used an Automatic Plate Recognition System to calculate the length of my stay.

    It says the car park is private property and signage on entrance clearly sets out the rules and regs of the car park and tariff.

    It also says under Schedule 4 of POFA 2012 they have the right to recover from the keeper of the vehicle.

    Am I still able to appeal do you think? And if so exactly which template do I use I'm so confused....because even then I have to adapt it to my case don't I? And I have no idea what my case is as I seem to be in the wrong
    • Umkomaas
    • By Umkomaas 24th Apr 17, 10:03 AM
    • 13,145 Posts
    • 20,542 Thanks
    Umkomaas
    • #7
    • 24th Apr 17, 10:03 AM
    • #7
    • 24th Apr 17, 10:03 AM
    So would someone mind baby stepping me please
    The majority of posters do too, but with a small handful of regular contributors and upwards of often 50 new cases a day it's a human impossibility to provide that service - and for free!

    That's why the NEWBIES FAQ sticky was written, to help the uninitiated with their problem, on a largely self-help basis.

    Post #3 of the sticky covers POPLA (including ready made appeal point templates to copy and paste). Also do forum searches on 'Euro Car Parks POPLA' to find recent POPLA appeals, then plagiarise appropriate appeal points to suit your case.

    Show us a draft of your appeal for crituque/fine tuning. Don't miss your POPLA deadline, or the whole process will become tedious, lasting for up to 6 years for you.
    Last edited by Umkomaas; 24-04-2017 at 10:11 AM. Reason: Remove fat-finger typos!
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • mae
    • By mae 24th Apr 17, 1:02 PM
    • 1,418 Posts
    • 814 Thanks
    mae
    • #8
    • 24th Apr 17, 1:02 PM
    • #8
    • 24th Apr 17, 1:02 PM
    Yes I understand Im asking too much lol when everything is already there...so I have used the templates and copied this from Rob's thread which I think is relevant to my case below
    • mae
    • By mae 24th Apr 17, 1:03 PM
    • 1,418 Posts
    • 814 Thanks
    mae
    • #9
    • 24th Apr 17, 1:03 PM
    • #9
    • 24th Apr 17, 1:03 PM
    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 evidence of Landowner Authority
    2.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
    3.BPA Code of Practice - further non-compliance - photo evidence.
    4.The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
    5.No Keeper Liability
    6.No Driver Liability

    1. No evidence of Landowner Authority - 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 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 in small print 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 CoP 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

    2. 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:

    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:

    2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%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:

    archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

    signazon.com/help-center/sign-letter-height-visibility-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:

    ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/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:

    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.

    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 of 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 signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.

    Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

    Euro Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.

    It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.

    In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

    This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: 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.

    and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

    Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

    .legislation.gov.uk/uksi/2008/1277/contents/made

    Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
    (a) the commercial practice omits material information,

    (b) the commercial practice hides material information,

    (c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

    (d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

    and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

    It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.
    • mae
    • By mae 24th Apr 17, 1:05 PM
    • 1,418 Posts
    • 814 Thanks
    mae
    5. No Keeper Liability

    The Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park.
    These times do not equate to any single evidenced period of parking. There is no evidence of a single period of parking and this cannot reasonably be assumed on the balance of probabilities, from two photos of a car in moving traffic, timed hours apart.

    Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;

    “Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

    You cannot discount that the driver may have driven in and out on two separate occasions. There is ample evidence in the public domain that ANPR timings can mask other ordinary circumstances, such as two visits ('double dip', a well known phenomenon).

    Here are just three examples of BPA member ANPR evidence failures, including a court loss and an ICO investigation:

    parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html

    parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

    parking-prankster.blogspot.co.uk/2015/10/parkingeye-subject-to-data-protection.html

    This 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in the following article:

    britishparking.co.uk/Other-Advice#4

    As with all new technology, there are issues associated with its use:
    ''Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

    The BPA even mention this as an inherent problem with ANPR on their website;

    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...'

    POFA 2012, paragraph 9(3) states;

    “The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)”

    If the ANPR system has picked up two separate occasions then it would fail on the above ruling as two separate PCNs should be issued, assuming the vehicle in question had breached the contract terms, and not just the one that was sent to the Keepers address. I put the operator to strict proof that there was only one period of parking, because this is a mandatory requirement for keeper liability also stated clearly in Schedule 4.

    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:

    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: 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:
    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 the second condition for keeper liability due to the 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.''

    6. No Driver Liability

    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.''

    I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.
    • Umkomaas
    • By Umkomaas 24th Apr 17, 2:15 PM
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    Umkomaas
    It seems long enough to start with. Often that is sufficient to cause the PPC to throw their hand in and give up.

    I notice you are comparing ECP signs with those of PE in the Beavis case. Are you doing that with a blind copy and paste from another appeal, or are you actually comparing with the signs at 'your' car park? Do you have photos of those signs? It would help if you could get some to show the Assessor in your appeal.

    Try to embed photos into your appeal, rather than expect the Assessor to chase links around the internet. You need to have them on your side as much as possible, so make their job as easy as you can.

    Depending on your POPLA deadline, wait to see if others might comment before converting your Word file into .pdf format, and submitting it under 'Other'.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • mae
    • By mae 24th Apr 17, 2:19 PM
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    • 814 Thanks
    mae
    Its pretty much a blind copy but I do have their picture of the sign that they sent with their letter but I don't know if I should include that?
    • Umkomaas
    • By Umkomaas 24th Apr 17, 2:30 PM
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    Umkomaas
    Its pretty much a blind copy but I do have their picture of the sign that they sent with their letter but I don't know if I should include that?
    Originally posted by mae
    Personally I'd prefer my own evidence. Is the picture of the actual sign at your car park, or a stock copy (don't assume that all their signage is like the one they've sent you)?

    Blind copying is extremely dangerous if you don't read it through thoroughly and say to yourself does each of these appeal points I am making (blindly copying!) relate to my parking event. You need to do all the checking and proof reading. I've merely skim read your appeal and made some basic comment - we get dozens of 3,000+ word essays each week. Impossible to provide word-by-word analysis.

    You need to be ahead of the curve with this.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • mae
    • By mae 24th Apr 17, 2:31 PM
    • 1,418 Posts
    • 814 Thanks
    mae
    Thanks

    Ok will check over it again and get my own photos of the signs.

    Ive just been on the POPLA site..and it gives options for 'grounds' which one do I tick? *EDIT to say its ok Ive just found the answer to this its 'OTHER' if anyone else is interested
    Last edited by mae; 24-04-2017 at 2:43 PM.
    • Umkomaas
    • By Umkomaas 24th Apr 17, 2:45 PM
    • 13,145 Posts
    • 20,542 Thanks
    Umkomaas
    Ive just been on the POPLA site..and it gives options for 'grounds' which one do I tick?
    I've already covered that in my final sentence in post #11 above.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • mae
    • By mae 24th Apr 17, 2:47 PM
    • 1,418 Posts
    • 814 Thanks
    mae
    I've already covered that in my final sentence in post #11 above.
    Originally posted by Umkomaas
    Oh yes you did sorry..I told you I was overwhelmed I'm not taking in information clearly :/
    • mr houd
    • By mr houd 25th Apr 17, 12:06 PM
    • 1 Posts
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    mr houd
    but surely this can not be classed a parking can it?
    Hi

    Can anybody please advice me on how I can appeal a Parking Charge Notice from Euro Car Parks.

    I was sent a letter demanding payment for exceeding the maximum parking time permitted at ESSO petrol station by 11 mintues((45 minutes permitted).

    But my issue is that I was not using the parking there but rather I was using theforecourt service ie vacuum cleaner, checking my tyre pressure and adding air to my tyres. the only time that I left the car was to get change for the machines and to buy a coffee. Okay I know I took a while to do this (56 mins) but surely this can not be classed a parking can it?

    Can anybody advice me on how I should appeal this.

    I have spoken to the staff at the petrol station and they could not help as it is with a 3rd party. I do have proof of purchase for the coffee as well.

    thank you.
    • pogofish
    • By pogofish 25th Apr 17, 12:38 PM
    • 7,127 Posts
    • 7,147 Thanks
    pogofish
    Hi

    Can anybody please advice me on how I can appeal a Parking Charge Notice from Euro Car Parks.
    Originally posted by mr houd

    For starters, don't hijack someone else's thread!

    Please go and read the Newbies Sticky at the top of this forum carefully - it will inform you and lay-out the most effective strategies, then start your own thread!
    • Coupon-mad
    • By Coupon-mad 26th Apr 17, 1:04 AM
    • 46,959 Posts
    • 60,319 Thanks
    Coupon-mad
    Hi

    Can anybody please advice me on how I can appeal a Parking Charge Notice from Euro Car Parks.
    ...
    Can anybody advice me on how I should appeal this.
    Originally posted by mr houd
    Is the 'NEWBIES PLEASE READ THESE FAQS FIRST' thread at the top of the forum (the one with the template appeals and explaining all about appeal stage) in invisible ink again this week?!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mae
    • By mae 27th Apr 17, 9:21 AM
    • 1,418 Posts
    • 814 Thanks
    mae
    Hi

    I've sent my POPLA but just wanted to check do I also need to notify ECP that I have done this or are they notified automatically because of the code they generated?
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