PCN from EuroCar Parks, Festival Park, Stoke on Trent

antreas

Hello everyone.

I know its been a nightmare with everyone just starting a thread to ask for help, but trust me its the same nightmare for someone to read such a big number of threads or follow so many internet opinions about this matter.

Also apologies for my English, I am Greek and this is my 2nd year in UK so still much room for improvement for me.

I would like to ask some help with my case, I have read so many threads of other appeals, I have spent so many hours for this but I could still use a hand if anyone wants to help.

So I got my PCN from EuroCar Parks at 08/02/16 as my car was parked over the maximum allowed time at 31/01/16. My car was allowed to park there for 4 and a half hours, but seems to stayed there for exactly 6 hours.

I have already applealed to them who obviously rejected it, I got my POPLA appeal reference and now I am preparing my appeal to them.

I have read about how the No Genuine Pre-Estimate of Loss/Punitive Charge may not be a winning point after that Beavis case, but decided to include it anyway,

I will also include the Contractual Authority given to them by the landowner, and also the Code of Practice - non-compliance to guidelines as the pictures I received had no date and time stamp, it was only mentioned below the pictures as part of the text.

I have been reading other cases and I try to copy some valid points from other people appleals that suit my case.

Can anyone help what else I should include or if I should remove something from the above?

Some extra info about my case is that 31st of Jan was Sunday, the extra 1 and a half hour that my car overstayed was when almost all shops in this park are already closed, plus this parking is enormous and never gets full,so big that it is just impossible to full.

Also in the letter that EuroCar park sent to reject my appeal they included a photograph of the proposed signage that is displayed within the car park, although whey I visited the car park today I did not see the same sign at the entrance, but only a different one that did not include so many details. Tried to post some pics but system did not allow me to do so.

Coupon-mad

I have been reading other cases and I try to copy some valid points from other people appeals that suit my case.

Can anyone help what else I should include or if I should remove something from the above?

Did you already tell Euro who was driving the car? Is it a hire car or your own?

today I did not see the same sign at the entrance, but only a different one that did not include so many details. Tried to post some pics but system did not allow me to do so.

Change the 'http' to hxxp' at the start of your links.

Ralph-y

hi and welcome to the forum .........

please have a read through the last few pages of this POPLA appeals thread

https://forums.moneysavingexpert.com/discussion/comment/70483048#Comment_70483048

make sure you only read through the last dozen or so pages ... and not old/out of date ones ....

the newbie thread is also useful ...

https://forums.moneysavingexpert.com/discussion/4816822

post up your POPLA appeal for forum members to see before sending ...

good luck

Ralph:cool:

antreas

thanks for the quick replies guys.

@Coupon-mad, no I did not The first thing I read is never do that

It is my car.

Good point about the pics, this is what you can see when you enter the car park
hxxp://postimg.org/image/g04p1yo2p/

And this is what Euro Car parks has sent,
hxxp://postimg.org/image/4z9jwxvtt/

@Ralph-y been through as much as I could, final step was to create this thread to try and get some final advise. No point in posting the appeal yet, as it is a hard draft version with many things to be improved as we get closer to the Platinum version of it :rotfl:

Coupon-mad

Coupon-mad wrote: »

Did you already tell Euro who was driving the car?

''@Coupon-mad, no I did not The first thing I read is never do that ''

Good. So your first point is 'no keeper liability' and you can try to compare the postal PCN to paragraph 9 of the POFA Schedule 4:

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

If you need help - ask on this thread!

antreas

ok, time to post up my appeal doc, still needs to work, have not added anything for the ''No Keeper Liability'' point as I do not know exactly how I should describe it. So please, take a look, and throw at me your suggestions on what to add, or what to remove. Again, big thank you to all.

As the registered keeper of the above vehicle, I wish to appeal for the parking charge notice Euro Car Park issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1)No Keeper Liability
2) No Genuine Pre-Estimate of Loss/Punitive Charge
3) Contractual Authority
4) BPA Code of Practice - non-compliance to guidelines
5) Lack of signage – no contract with driver
6) Unreasonable/Unfair Terms

1) No Keeper Liability

2) No Genuine Pre-Estimate of Loss/Punitive Charge:
According to Euro Car Park Limited's ANPR system, my car was parked for 6 hours. The car park at Festival Retail Park allows customers to park free of charge, under tort of trespass law. The companies have not lost out on any parking charges as the car park is free. £90 is clearly not a genuine pre-estimate of their loss or loss to the landowner. If Euro Car Parks Limited believes their charge is a genuine pre-estimate of loss to the landowner, I request they produce a detailed and itemized breakdown of how this is calculated. The charge of £90 is clearly grossly disproportionate to the purported loss. Please note that the PCN was issued at 31/01/2016 which was Sunday, and the time spent over the limit was when almost all retail shops in this park were already closed. Also note, that this car park is enormous, and never gets full or even close to get full. There is no loss flowing from this parking event because the car park was no-where near full.

3) Contractual Authority:
I question Euro Car Parks Limited’s authority to operate and issue parking charge notices on the site Festival Retail Park from the landowner.
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). I question Euro Car Parks Limited’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in 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 license to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Euro Car Parks Limited is entitled to pursue these charges in their own right.
I request Euro Car Parks Limited to provide evidence that proves their authority. It has to be an up-to-date and signed contract which shows they are lawfully entitled to demand money from the driver/registered keeper (in the event the driver has not been disclosed). I would also like to clarify that this should be an actual copy and not just a document stating such a contract exists. Without evidence of such the perceived "contract" between the driver and Euro Car Parks Limited is null and void, as in common law a contract can only be formed between the driver and the landowner.
I require Euro Car Parks Limited to provide a full copy of the contemporaneous, signed & dated contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for Euro Car Parks Limited merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

4) BPA Code of Practice - non-compliance to guidelines:
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 show the vehicle entering or leaving the car park as required in the BPA Code of practice. 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 invite Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp.

5) Lack of signage – no contract with driver
I have visited this same car park as my car was parked at date of the incident. The signs are not visible from a distance and the words are unreadable. I have stated this in my appeal to Euro Car Parks and in their reply to reject my appeal, they included a picture of a signage as proof. As I mentioned above, after my visit in the same car park on foot, I did not see any signage like that in the entrance of the car park. I put Euro Car Park to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would seem them on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ 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 hours of darkness:”Signs should be readable and understandable at all times, including during the hours of darkness…when parking enforcement activity takes place at those times. This can be achieved…by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit…should be made of a retro-reflective material similar to that used on public roads”

6) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:’18.1.3 Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed too high to read, is far from ‘transparent’.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

so, what do you guys think?

Coupon-mad

Here are your pictures:

entrance:

http://postimg.org/image/g04p1yo2p/

other sign:

http://postimg.org/image/4z9jwxvtt/


Re your draft POPLA appeal:



1)No Keeper Liability

You simply need to copy paragraph 9 of Schedule 4 of the POFA 2012:

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

...and then state after each point how ECP have failed to exactly meet (some of) the requirements. Compare the exact words. Or show us the PCN front and back if you still need help, so we can look at their wording for you, as English isn't your first language.

2) No Genuine Pre-Estimate of Loss/Punitive Charge

You need to remove this point above and this point below (and all the wording under these two headings, because they do not apply:

6) Unreasonable/Unfair Terms

Quote the Beavis case in your favour though. Specifically quote the Supreme Court Judges about signs having to be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound. In this case it seems the time limit has been altered to 4.5 hours and you believe that the signs have been changed since the parking event so say that you require Euro Car Parks to supply photos of the signs as they were at the time and their site signage maintenance records from the applicable time, if they disagree that the signs and the maximum stay time have recently changed.

And quote the BPA CoP about signage font size (Appendix and entrance signage.

And see posts 16 and 17 here (ignore stuff about Hospitals):

https://forums.moneysavingexpert.com/discussion/comment/70494743#Comment_70494743

You can see how the 'no landowner authority' point quotes BPA CoP section 7.3 from that example. I wouold always quote it.

And in post #17 I've suggested something to add at the end (remove the bit about the Government NHS Car park 'public policy' because yours is not about a Hospital!). But you can use pretty much all of the post #17 suggested wording to make POPLA see you are not liable, from 'I would remind POPLA that' right through to the bit asking them to find in your favour.

After you have made those changes, show us your next draft and also both sides of the PCN if you need help as we want to help you to win.

Also apologies for my English, I am Greek and this is my 2nd year in UK so still much room for improvement for me.

You are doing a fantastic job of understanding this. Much better than some lazier English posters! Very impressed with how you are doing so far.

antreas

@Coupon-mad as an unexpected travel back home has occured, I need to complete this thing tonight as I m going tomorrow and getting back after the 28 days have already passed. I ll try to post my next draft in the next 30 mins.

Also, you think that I should remove them or that it would be better to let them in even though they might not apply? I mean would that be like a negative factor for my appeal?

And regarding that No Keeper Liability , I still dont get what do I need to do exactly (sorry about this, I sound like a fool, I know).

Also, I have included already the BPA CoP about signage font size (Appendix in point no5.

antreas

ok, here we go, again, thank you everyone for the time you spend to help me out

Vehicle Registration Number xxxxxxxx
PCN Reference xxxxxxxxxxx
Issued by Euro Car Parks Limited

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Euro Car Park issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
2) No Genuine Pre-Estimate of Loss/Punitive Charge
3) Contractual Authority
4) BPA Code of Practice - non-compliance to guidelines
5) Lack of signage – no contract with driver

1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
The registered keeper is submitting this appeal and APOCA do not have the identity of the driver. This operator has failed to comply with the following requirements of the Act and consequently cannot rely on its provisions for keeper liability:
Paragraph 8 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(f) Warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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, 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;
Euro Car Parks have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.
Paragraph 9 (2)(h) of schedule 4 of POFA 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of "The creditor is .....». The keeper is entitled to know the party with whom any purported contract was made. APCOA have failed to do this and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper. In addition, the BPA code of practice also says, '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14. As APCOA has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act cited above, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver and there is no lawful way I can be held liable as registered keeper.



2) No Genuine Pre-Estimate of Loss/Punitive Charge:
According to Euro Car Park Limited's ANPR system, my car was parked for 6 hours. The car park at Festival Retail Park allows customers to park free of charge, under tort of trespass law. The companies have not lost out on any parking charges as the car park is free. £90 is clearly not a genuine pre-estimate of their loss or loss to the landowner. If Euro Car Parks Limited believes their charge is a genuine pre-estimate of loss to the landowner, I request they produce a detailed and itemized breakdown of how this is calculated. The charge of £90 is clearly grossly disproportionate to the purported loss. Please note that the PCN was issued at 31/01/2016 which was Sunday, and the time spent over the limit was when almost all retail shops in this park were already closed. Also note, that this car park is enormous, and never gets full or even close to get full. There is no loss flowing from this parking event because the car park was no-where near full.
3) Contractual Authority:
I question Euro Car Parks Limited’s authority to operate and issue parking charge notices on the site Festival Retail Park from the landowner.
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). I question Euro Car Parks Limited’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 license to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Euro Car Parks Limited is entitled to pursue these charges in their own right.
Euro Car Parks Limited has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or to pursue charges for breach in their own name. In the absence of such title, Euro Car Parks Limited must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name. I suggest that Euro Car Parks Limited are certainly not empowered by the landowner to sue customers and visitors for overstaying in a free of charge enormous parking.
In addition, Section 7.3 states:
“The written authorization 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 request Euro Car Parks Limited to provide evidence that proves their authority. It has to be an up-to-date and signed contract which shows they are lawfully entitled to demand money from the driver/registered keeper (in the event the driver has not been disclosed). I would also like to clarify that this should be an actual copy and not just a document stating such a contract exists. Without evidence of such the perceived "contract" between the driver and Euro Car Parks Limited is null and void, as in common law a contract can only be formed between the driver and the landowner.
I require Euro Car Parks Limited to provide a full copy of the contemporaneous, signed & dated contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for Euro Car Parks Limited merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
4) BPA Code of Practice - non-compliance to guidelines:
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 unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. 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 show the vehicle entering or leaving the car park as required in the BPA Code of practice. 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 invite Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp.

5) Lack of signage – no contract with driver
I have visited this same car park as my car was parked at date of the incident. The signs are not visible from a distance and the words are unreadable. I have stated this in my appeal to Euro Car Parks and in their reply to reject my appeal; they included a picture of a signage as proof. As I mentioned above, after my visit in the same car park on foot, I did not see any signage like that in the entrance of the car park. I put Euro Car Park to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would seem them on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ 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 hours of darkness:”Signs should be readable and understandable at all times, including during the hours of darkness…when parking enforcement activity takes place at those times. This can be achieved…by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit…should be made of a retro-reflective material similar to that used on public roads”
In the Beavis case, the Supreme Court Judge concluded that signs lave to be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound. In this case it seems the time limit has been altered to 4.5 hours and I believe that the signs have been changed since the parking event. If Euro Car Parks disagree that the signs and the maximum stay time have recently changed, I require that Euro Car Parks need to supply photos of the signs as they were at the time of the parking event and their site signage maintenance records from the applicable time.

So to conclude, 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 fail consumers by making any wrong assumptions about liability nor impose the Beavis case arbitrarily upon all cases. 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. 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. In actual fact, this binding case law supports a consumer appellant in other parking charge cases like this one where it is clear that the stated policy and will of Parliament remains firmly against this charge in retail car parks and the charge fails the 'penalty' rule.
The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs and this flawed rationale for the sum, the Beavis case does not assist them at all.
Finally, if Euro Car Parks should try to suggest that there is any method outside of the prescribed statute (POFA) 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 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 of the following facts about a keeper's right not to name the driver and, of course, still not be held in law as liable under Schedule 4:
xxx.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.”
I have made my detailed submission to show how the applicable law (POFA), case law (Beavis), the BPA Code of Practice and public policy (Government Policy regarding retail car parks) undoubtedly supports my appeal, which I submit should now be determined in my favor.

Yours sincerely,
XX

Coupon-mad

antreas wrote: »

@Coupon-mad as an unexpected travel back home has occured, I need to complete this thing tonight as I m going tomorrow and getting back after the 28 days have already passed.

And regarding that No Keeper Liability , I still dont get what do I need to do exactly (sorry about this, I sound like a fool, I know).

Hat tip to Edna Basher, I found a very nice 'demolition job' about a Euro Car Parks Notice to Keeper on another thread and amended it to suit what you needed.

Here you go, use this version below instead.

Save it as a PDF and attach it under 'other' on the POPLA website. Make sure you do successfully upload it before clicking 'submit' and do not say any words which mention who was driving, in the boxes. Just something like 'Here is my appeal'.




Vehicle Registration Number xxxxxxxx
PCN Reference xxxxxxxxxxx
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) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
2) No Landowner Authority
3) BPA Code of Practice - non-compliance
4) Lack of legible signage – no contract with driver
5) The unclear, altered signs and lack of proof of any legitimate interest/any right to sue customers/any authorised limit of 4.5 hours distinguishes this matter from the ParkingEye v Beavis case.

************************************************************

1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’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 a non-exhaustive list of reasons why Euro Car Parks’ Notice to Keeper failed to comply with Schedule 4 of POFA:

(i) Contrary to the requirements of Paragraph 9(2)(a), 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. Indeed 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:

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

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

http://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:

http://www.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.''

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 here in Schedule 4, to reiterate the importance of parking evidence:


(ii) ''9 (3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)...''


(iii) 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.


(iv) 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 to include all of the above wording, as prescribed under the statute.


(v) Contrary to the requirements of Paragraph 9(2)(f), this 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— ...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;''


(vi) Contrary to the requirements of Paragraph 9(2)(h), the Notice to Keeper does not identify the creditor and specify how and to whom payment or notification to the creditor may be made;


(vii) 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.

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:

https://www.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 multiple 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.''




2) No landowner Authority:

I question Euro Car Parks Limited’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’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 ‘ticket’ 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 free of charge enormous 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:

“The written authorization 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.

This is vital, especially in view of the signs where it is clear on close scrutiny, is that someone (identity not established and I ask the operator for evidence in this regard) has changed the time limit to 4.5 hours at some point. So, I contend that the contract - if this operator produces one - does not reflect the altered signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

It is eminently possible that the contract states only the original free parking period (whatever that was) and therefore a sticker over a sign is unsupported by the will of the landowner in any contract. This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 4.5 hours in a car park where they have only allowed this agent to issue PCNs after a completely different period.

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 – not merely an ‘agreement’ with a non-landholder managing agent – 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 unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. 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) Lack of signage – no contract with driver - no adequate notice of the charge nor maximum stay (4.5 hours altered by a sticker)

I am the registered keeper and 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 been shopping that day (or even more than one driver on separate visits, not disproven by Euro Car Parks). As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

(3) ''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

(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.''

For the purposes of this appeal, I have now visited this same car park that this operator alleges 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).

The parking charge itself is not in 'large lettering' and I note that the time on some signs (I do not know if this is consistent on all the signs) has been altered by a flimsy sticker at some point, by someone, to read: '4.5 hours maximum'. However I have no information as to when these stickers were applied and by whom and what the time limit in fact was, at the time of the alleged parking event. It could have been ten hours for all I know, and unlike the driver(s) on the day, when I visited recently for evidence and information to help with this appeal, I was specifically seeking out the signs and terms and still could not read the parking charge or time limit clearly, when expressly looking for it.

The burden falls to the party trying to claim money, to produce irrefutable evidence that all their signs showed less time 'allowed' than the timing shown in their own photographs. It is obvious that the previous signage said something entirely different and that time cannot be assumed, it must be proved by this operator when the signs changed.

I have stated this in my appeal to Euro Car Parks and in their reply to reject my appeal they included a picture of a sign. In fact when I subsequently visited, looking around the site on foot, I did not see any signage like that in the entrance of the car park and again, I believe this has been changed at some unidentified point. I put Euro Car Parks to strict proof otherwise.

As well as a 'site map' showing the location of all signs - and the plotted/circled location of where they contend the car was actually parked in one single period for six hours - they must show photos of the signs as the driver would seem them from a driver's seat, upon entering the car park.

A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ 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. And if/when the timing was changed to 4.5 hours then a BPA AOS operator is obliged to ensure that any change in restrictions or terms is drawn to the clear attention of drivers, who would otherwise rely upon knowledge of any previous time limit.

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.



5) The unclear, altered signs and lack of proof of any legitimate interest/any right to sue customers/any authorised limit of 4.5 hours 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.

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,

antreas

Oh my God, you are amazing mate. Honestly, if you ever visit Stoke, I ll buy you a beer (or two)... Saving this now, will try to send it out tomorrow.

I cant thank you enough for your help. I could never believe that someone would go through all this hard work to help a complete stranger who just signed up 3 days ago to this community.