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POPLA Decisions

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  • Edd12
    Edd12 Posts: 19
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    edited 3 November 2023 at 11:33PM
    original thread here ECP Car park overstay — MoneySavingExpert Forum

    PPC: Euro Car Parks

    Decision
    Successful

    Assessor Name
    <redacted>

    Assessor summary of operator case

    The operator has issued the Parking Charge Notice (PCN) as your vehicle was parked longer than the maximum period allowed.

    Assessor summary of your case

    The appellant has provided a detailed account of events. For the purpose of my report, I have summarised the grounds into the following points, and have checked each point before coming to my conclusion. The appellant states that: • They are the registered keeper of the vehicle. • The signage and entrance signage is inadequate and not well lit. • There is not adequate notice of the parking charge. • The operator has no evidence of landowner authority. The appellant has commented on the operator’s evidence reiterating the grounds made in their initial statement. The appellant has provided the following evidence to support their appeal: • Image of signage x2. • Image of entrance signage x2. • Image of generic sign.

    Assessor supporting rational for decision

    I am allowing this appeal for the following reason: When an appeal comes to POPLA the burden of proof begins with an operator to demonstrate that the parking charge has been issued correctly. The driver of the vehicle has not been identified. As such, the operator is pursuing the registered keeper for the PCN. Schedule 4, Paragraph 9, subsection (2) (f) of the Protection of Freedoms Act (POFA) 2012, states that the keeper must be warned that ‘after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver’. It goes on to state in (e) (ii) that ‘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’. In this case the operator has issued the PCN directly to the keeper so therefore must follow Paragraph 9 of POFA 2012. In their PCN the operator has not brought a satisfactory warning to the keeper, as the notice does not advise the keeper that if they were not the driver to pass the notice onto the driver. I am therefore not satisfied that the operator has met the requirements set out in POFA 2012. And, as such, I am allowing this appeal. I acknowledge that the appellant has brought other grounds of appeal and evidence to POPLA, but as I am allowing this appeal based on the reasoning above, there is no requirement to address these grounds as they will not affect the outcome of this appeal.

  • Coupon-mad
    Coupon-mad Posts: 129,100
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    Well done!

    Interesting on two counts:

    - you didn't raise the non-POFA NTK wording in your appeal!  Just shows the benefit of erring on the side of caution and not saying in any appeal who was driving.

    -  you said in your OP, that the NTK has the same wording as this one:
    https://forums.moneysavingexpert.com/discussion/6460975/ecp-ntk-for-overstaying-when-store-was-closed

    How the heck have we not noticed before, that supposedly 'POFA' ECP NTKs miss out the entire chunk of wording that should say that they "do not know who the driver was" and that "the keeper should pass the notice to them"?
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  • Umkomaas
    Umkomaas Posts: 41,119
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    How the heck have we not noticed before, that supposedly 'POFA' ECP NTKs miss out the entire chunk of wording that should say that they "do not know who the driver was" and that "the keeper should pass the notice to them"?
    I wonder if ECP will go to the expense of a rehash of their NtK, or work on the basis that 99.9% of motorists will have no clue. They'll live with the 0.1% who get a POPLA assessor savvy enough to find for them. ECP's minimal cost of doing business!
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    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.

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  • Edd12
    Edd12 Posts: 19
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    Well done!

    Interesting on two counts:

    - you didn't raise the non-POFA NTK wording in your appeal!  Just shows the benefit of erring on the side of caution and not saying in any appeal who was driving.

    -  you said in your OP, that the NTK has the same wording as this one:
    https://forums.moneysavingexpert.com/discussion/6460975/ecp-ntk-for-overstaying-when-store-was-closed

    How the heck have we not noticed before, that supposedly 'POFA' ECP NTKs miss out the entire chunk of wording that should say that they "do not know who the driver was" and that "the keeper should pass the notice to them"?
    Yes I thought this was interesting too - I'm now going through the rest of my NTKs to check the wording of them.

    Thanks to everyone who helped in my original post - still got a pile of others that I am awaiting solicitor LBCs for :)
  • Hi all,

    I've just had an unsuccessful decision back and thought it was worth posting here for info. I thought I'd done a good job at rebutting the evidence supplied, but hey ho. Will keep up the good fight.


    -----------------------------



    Assessor summary of operator case

    The parking operator has issued a parking charge notice due to unpaid tariff time.

    Assessor summary of your case

    The appellant has raised the following points from their grounds of appeal: • They advise that the driver has not been identified and the PCN is not compliant with the Protection of Freedoms Act (PoFA) 2012 for keeper liability. • They say that the PCN is not complaint with paragraph 9, section (2a) of POFA. • They advise that the parking operator has breached section 20.5a and 31.1 of the British Parking Association (BPA) code of practice. • They say that 18.2 of the BPA code of practice has been breached. • The appellant has quoted from previous cases from other motorists that have had a decision issued. • They say that the charge is not proportionate as per the ParkingEye V Beavis Case. • The appellant provides links to external websites. • They advise that the signs are not adequate. • They say that the parking operator does not have landowner authority as per section 7 of the BPA code of practice. • They advise that there has been a breach of section 21.2 of the code of practice. • They say there has been a breach of section 21.3 of the code of practice. After reviewing the parking operator’s evidence, the appellant expands on their grounds of appeal advising that the parking operator has not responded to all the points. They advise that the photographs supplied by the operator is insufficient, the notice to keeper is not compliant and that the signs are insufficient.

    Assessor supporting rational for decision

    When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. The appellant has identified as the keeper of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the keeper. For an operator to transfer liability of unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. Having viewed the notice to keeper issued to the appellant I am satisfied that the operator has complied with Schedule 4 paragraph 9 of PoFA 2012, and that liability of the parking charge was successfully transferred to the keeper at the time of the event. The BPA monitors how operators treat motorists and has its own Code of Practice setting out the criteria operators must meet and comply with. In its code of practice section 21.16 it states: “If the keeper does not reply within 28 days, or refuses to give enough details about the driver, under Schedule 4 of PoFA 2012 you are able to pursue the keeper for the unpaid parking charge.” Paragraph 8 (2) (f) (ii) of PoFA 2102 it states: “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.” I am satisfied that the operator has complied with the BPA code of practice and PoFA 2012 in pursuing the keeper of the vehicle. The appellant has advised that the parking operator has breached section 20.5a of the BPA code of practice, this is now section 21.5a in version 8 of the code of practice published in January 2020. Section 21.5a of the code of practice 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 BRITISH PARKING ASSOCIATION CODE OF PRACTICE 14 photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.” The parking operator has provided Automatic Number Plate Recognition (ANPR) images of the appellants vehicle entering and exiting the car park. These images are date and time stamped. I am satisfied from these images that the parking operator has complied with section 21.5a of the code of practice. The appellant has advised that the parking operator has breached section 31.1 of the code of practice, this relates to Scotland and Northern Ireland only. Therefore, this is not relevant to the decision. The appellant has advised that the parking operator has breached section 18.2 of the BPA code of practice, this is now section 19.2 in version 8 of the code of practice published in January 2020. Section 19.2 of the code states: “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.” The parking operator has provided photos of the entrance sign in place at the car park. I believe the entrance sign is visible to motorists as they enter the car park. I am satisfied from the images that the parking operator has complied with section 19.2 of the code of practice. POPLA deals with appeals on a case-by-case basis considering the merits of each case, therefore any external issues such as other parking events hold no bearing on our appeal making process. I fully appreciate that the appellant has quoted previous decisions issued to other, however I do not consider this to have any impact on the appellant's ability to comply with the terms and conditions of the car park. Therefore, I cannot consider this relevant to my decision. The Supreme Court considered private parking charges in a high-profile case, Parking Eye v Beavis, and ultimately decided that a charge did not need to reflect any actual loss incurred by a parking operator or landowner – “the £100 charge is not a penalty. Both the operator and the landowners had a legitimate interest in charging motorists, which extended beyond the recovery of any loss”. The Court’s full judgement in the case is available online (www.supremecourt.uk/cases/uksc-2015-0116.html) should the appellant wish to read it. The parking operator has provided images of the signs at the car park. The signs state that a PCN of £100 will be issued for not complying with the terms and conditions. The charge does not exceed the amount with the case. The appellant has provided links to external websites in regard to the signs at the car park, however for security we are unable to access these. In its Code of Practice section 19.3 it states: "Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand." The parking operator has provided photos of the signs at the car park which state that tariffs apply. The signs also say that a PCN of £100 will be issued for not complying. It is the responsibility of the motorist when entering a car park that they make themselves aware of the signs and what the restrictions and tariffs are. It is of my opinion that the signs are clear and legible to all motorists when entering the car park. I am satisfied from the photos of the signs in place at the car park that the parking operator has provided that it has complied with section 19.3 of the code. The appellant states that the operator does not have landowner authority in accordance with section 7 of the BPA code of practice. The BPA code of practice section 7.1 states: “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent).” The operator has provided evidence of a document for landowner authority signed and dated 25 November 2021. The photos of the car park provided by the parking operator are date stamped 28 February 2022, I believe if the parking operator did not have landowner authority the signs would have been removed from the car park. Therefore, I am satisfied that the operator does have landowner authority. The site in question is operated by ANPR technology. Every accessible entry and exit point to this car park is managed by either an entry or exit camera which takes an infrared image of the vehicle registration as it passes by, which is why it is important that motorists enter their full, correct registration so this can be calibrated to the images of their vehicle obtained from the ANPR cameras to determine whether the vehicle did in fact pay for adequate or inadequate time. Independent research has found that ANPR technology is generally reliable. I appreciate that there is the possibility for inaccuracies, I am happy to accept any evidence that suggests the appellant’s vehicle was elsewhere for this duration of time. Two ANPR images featured on the PCN show the appellant’s vehicle entering and leaving the car park. However, no evidence has been provided by the appellant to show that they were in an alternative area between the time frames pictured on the PCN, so we are unable to presume that they were not on site during the times stated. The appellant has advised that the parking operator has breached section 21.2 and 21.3 of the BPA code of practice, this is now section 22.2 and 22.3 in version 8 of the code of practice published in January 2020. This is not something that POPLA would look at, the appellant would need to raise this directly with the parking operator and follow the complaint process if they wish to pursue. After considering the evidence from both parties, did not pay for the duration of their stay and therefore did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal.

  • Coupon-mad
    Coupon-mad Posts: 129,100
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    edited 7 November 2023 at 10:02PM
    Yes keep ignoring debt demands.
    Which PPC?

    This is an odd thing to say almost 2 years later! Where is the 2023 signage evidence then?!

    "The operator has provided evidence of a document for landowner authority signed and dated 25 November 2021. The photos of the car park provided by the parking operator are date stamped 28 February 2022, I believe if the parking operator did not have landowner authority the signs would have been removed from the car park."

    Errr...how do we know they weren't? Compared to the parking event date, the photos are 18 months old.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Wow! That Assessor has a lot of passive aggressive rage at your attempts to appeal, taking great glee at pointing out where you got the CoP numbers were wrong. They seriously had it in for you at the start @grumpled

    Similarity to my Unsuccessful appeal text regarding "Landowner authority". The contract ParkingEye submitted expired by 3 years prior but because they had a "dated" photo from the carpark from a year+ prior to my PCN it was enough to satisfy the assessor of authority. I guess PPCs must be sure to take dated photos of every carpark each time they visit.

    (In my case from speaking with the landowner I realised they did had him on board, in fact I'd not be surprised if he was being given backhanders from the profits of the PCNs).
  • Umkomaas
    Umkomaas Posts: 41,119
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    In keeping with other recent posts, Premier Park NtK does not mention passing the notice to the driver
    One we must keep in mind when dealing with Premier Park cases. Nice one, well done. 👍
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    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.

    Private Parking Firms - Killing the High Street
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