POPLA Decisions

Molts

Euro Car Parks - Wish Street, Rye

Standard "throw the kitchen sink" appeal won on a point I missed myself! In summary the NtK did not contain the info required by POFA 2012 about "passing the notice on to the driver". A lesson to check the NtK even more thoroughly!

Fair play to the assessor. Hope this helps a few 

Decision Successful

Assessor Name Claire Brackenridge

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) for the P&D/permit purchased did not cover the date and time of parking.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal.

 • As the keeper, they are not liable for the alleged parking charge.

 • The parking operator did not comply with a grace period as per the BPA Code of Practice. There are two grace periods, one at the beginning and one at the end of a parking event.

 • It is argued that the duration of the visit in question, which Euro Car Parks claim was 44 minutes, is not an unreasonable grace period. 

• Euro Car Parks agreed to a grace period of 15 minutes either side of the parking event, therefore the parking duration is 14 minutes and more than covered by the tariff paid.

 • The site is not well lit and relies on nearby street lighting as its primary source of lighting and visibility was hindered further as the site was in twilight at time of the visit.

 • There are no entrance signs and signs in this car park are not prominent, clear, or legible from all parking spaces, therefore not complying with the BPA Code of Practice Section 18.2 and 18.3. 

• The writing on the signage is lengthy and the text is tiny. 

• They have provided a weblink to a font sizing chart.

 • The signs are high up on poles. 

• They have referred to other POPLA decisions relating to inadequate signage. 

• The parking charge itself is not adequately brought to the attention of motorists.

 • The pay and display machines have a confusing layout and is difficult to see/read and a completely counter intuitive operating system. 

• The above all increases the time taken to locate and read the signage, decide not to park there and therefore not enter a contract, and leave.

 • There is no marked parking bay at the location nor boundary of the venue. 

• There is no evidence of landowner authority, breaching Section 7.2 and 7.3 of the BPA Code of Practice. 

• Witness statements are not sound evidence of the above, often being pre-signed, generic documents not identifying the case in hand or the site rules. 

• The parking operator fails to comply with the data protection 'ICO Code of Practice' applicable to ANPR. There is no information about SAR rights, no privacy statement, and no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate, breaching the BPA Code of Practice.

 • They have provided a weblink to the BPA relating to excessive use of ANPR.

 • The notice to keeper (NTK) does not comply with POFA 2012 as the period parked is not evidenced, versus the time attempting to read the terms and conditions before deciding against parking/entering a contract.

 • The vehicle images contained in PCN breach the BPA Code of Practice Section 20.5a.

 • They have provided a weblink to a BBC news article, showing the industry’s priority is maximising the penalty received from the motorist without due regard to the integrity of the evidence.

 • The ANPR system is neither reliable nor accurate, and they provided a weblink to a BPA warning about ANPR flaws.

 • The signs fail to transparently warn drivers of what the ANPR Data will be used for, breaching Section 21.1 of the BPA Code of Practice. 

• There is no planning permission from Rother District Council for pole mounted ANPR cameras and no advertising consent for signage. The appellant has provided images of the site including the entrance and signage within, a screenshot showing a £0.40 payment made to ECP Wish Street on 2 September 2023, and an image of a pay and display machine. This has been considered in making my determination. After reviewing the operator’s evidence, the appellant has reiterated their case. They have said the alleged contravention that states that the P&D/permit did not cover the date and time of parking, is untrue. They have said the list of VRN’s is irrelevant as the list does not provide any proof of how long it took any of the users to park/pay nor which have been erroneously issued with a PCN because of alleged non-compliance. The appellant has said ECP have not served a compliant notice within 14 calendar days of the parking event. The appellant also raised new grounds for appeal in the comments section regarding the absence of PCN issuance on the windscreen or photographic evidence of the windscreen and that this is a significant limitation.

Assessor supporting rational for decision

The appellant has raised several grounds for appeal. However, my findings will focus on how the PCN was issued, as this ground has persuaded me to allow the appeal. It is the responsibility of the operator to provide POPLA with sufficient, clear evidence in order to rebut the appellant’s claims and prove that it issued the Parking Charge Notice (PCN) correctly. 

After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified. The operator is therefore pursuing the registered keeper of the vehicle in this instance. For the operator to transfer liability for 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. The operator has provided a copy of the Notice to Keeper (NTK) sent. Schedule 4 of the Protection of Freedoms Act (POFA) 2012, Section 9 (2) (e) states that the NTK must – 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— (i)to pay the unpaid parking charges; or (ii)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. Having reviewed the NTK, I note the wording does not mention passing the notice on to the driver. I appreciate the parking operator has provided a copy of a sample NTK that does state this, however this has no bearing on my decision as the NTK that was sent to the registered keeper did not contain this information. As the Notice to Keeper has not been issued in line with POFA 2012, then the operator is not able to transfer the liability onto the registered keeper and can only hold the driver liable for the PCN. 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. I note the appellant has raised other issues as grounds for appeal, however, as I have decided to allow the appeal for this reason, I did not feel they required further consideration. Accordingly, I allow this appeal.

Etccarmageddon

"I appreciate the parking operator has provided a copy of a sample NTK that does state this, however this has no bearing on my decision as the NTK that was sent to the registered keeper did not contain this information"

This is shows the bias and lack of independence of Popla as they allow "evidence" submitted by a parking operator which is a changed version of the notice to keeper and instead of castigating Euro Car Parks for their attempt at abusing the appeals system they refer to it as 'appreciated" implying the fake evidence from the parking operator is welcomed and a positive engagement within the appeals process.

Coupon-mad

Hmmm... this means we are going to have to tell appellants to show the NTK they received (both sides) to POPLA as evidence in the appeal, in cases where they are saying POFA wording is missing, because the PPC might chuck in another version.

Shocking.

Etccarmageddon

If this was via the legal system it would be classed as perverting the course of justice and that's pretty serious stuff.   They way popla are treating this behaviour shows the system is a joke and needs a proper regulator with teeth and the ability to ban or fine parking cowboys like euro car parks.

Coupon-mad

Etccarmageddon said:

If this was via the legal system it would be classed as perverting the course of justice and that's pretty serious stuff.  

Sadly it wouldn't.

If misleading or wrong evidence was fed in by a barrister, it would likely fly past the nose of a naive Circuit Judge - just like the wrong signs & lines (provided under a statement of truth) and an unsigned WS - wrong person signed it -  did in OPS v Wilshaw.

A notoriously shambolic appeal decision, where HHJ Simpkiss at Lewes - who cheerfully admitted he had no background working experience of contract law - overturned a Judgment by a DDJ who'd spotted some of the issues and had made a robust first judgment. Simpkiss also declared wrongly, that parking firms don't have to have landowner authority and that the added £82 was for a 'DVLA trace' and that "these things cost money".

And he failed to even consider his DUTY to apply the Consumer Rights Act test of fairness & prominence of the signs & terms, because instead, he lapped up every word from a barrister for OPS who was instructed to run with out of date (over a hundred years old) 'case law' that had not been trite law for years. 

He then proceeded to make the 70 year old lady Defendant pay over £3000 in costs.  Which I crowdfunded for her in a week.

The court system is a joke and there for the taking by any barrister if they get a credulous HHJ eating out of their hand.

From an appeals perspective:

The point is that we will need to be wary of the new Single Appeals Service because (even it ends up overseen by legally qualified people) you can't be sure those making decisions won't be easily led. At least at first.

We are going to have to be all over the first few decisions made and might have to refer mistakes to the Scrutiny Board sharpish.

At least there will be a Scrutiny Board!

Etccarmageddon

This is of course if it ever happens as the powers high up appear to keep stalling on implementing this?

Sammy25uk

Coupon-mad said:

kirkbyinfurnesslad wrote: »

Coupon mad wouldn't tell someone to say to popla they couldn't afford the charge...

You can tell perky threads/usernames. They always hve numbers in the usernames

I didn't tell the appellant to say that. I noticed that bit too, maybe she added it on the covering form as well as cutting off some words from the appeal. It was this thread below and the OP had already appealed giving away the driver (pre-POFA):

http://forums.moneysavingexpert.com/showthread.php?t=4506249

The OP did pm me to say Perky had sent a shedload of 'evidence' in response to POPLA later on which I asked to see but never did see it; she told me CPS had said the grace period was only a recommendation (it is not, it's a must):

''13 Grace periods

13.1 Your approach to parking management must allow a

driver who enters your car park but decides not to park,

to leave the car park within a reasonable period without

having their vehicle issued with a parking charge notice.''

What is the time limit of this? Is there any rule of that or accepted time for everyone?

Coupon-mad

That's a really old post!

Don't read this thread from page one.  Read it from the end backwards for relevant rules & decisions.

Sammy25uk

Coupon-mad said:

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"?

In case the keeper admits he is the driver but the notice doesn't include this warning, "they "do not know who the driver was" and that "the keeper should pass the notice to them"?

What is the rule on this ground? 

Umkomaas

Sammy25uk said:

Coupon-mad said:

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"?

In case the keeper admits he is the driver but the notice doesn't include this warning, "they "do not know who the driver was" and that "the keeper should pass the notice to them"?

What is the rule on this ground? 

If the name of the driver has been provided to the parking firm, PoFA is out of the window, the warning (or lack of it) is irrelevant, there's no loophole there.