Euro Car Parks Notice to Keeper Letter Advice Please

Umkomaas

I have put together a document for submission to POPLA, is it possible someone can scan to see if it will do ? It is approx 7 pages. I can post what is the best way ?

Copy and paste it here.

Are ECP in violation of the Town & Country Planning Act ?

Would need a Local Authority prosecution to determine.

Is it a point to be raised ?

Nah, never seen a POPLA appeal upheld on this basis.

As long as you've got a thorough, detailed and relevant (not just copied and pasted from elsewhere without careful proof-reading and adjustment) appeal, it's unlikely that ECP will contest.

DrBob_2

Pl find below my first draft for comment Thanks DrBob

My effort at a POPLA Appeal is given below
In order to keep the information anonymous some of the key points are edited out, but to make sense there is some info that is needed
The copy of the Notice to Keeper is shown at Post#4
The Date of Issue on the NTK (edited out) is 14 Nov 16.
Photographs of the Car Park signage are edited out in the following document for posting on the Forum.

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

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 is not established - The Notice to Keeper is not compliant with the POFA 2012
2) No Landowner Authority
3) BPA Code of Practice - non-compliance - photo evidence
4)BPA CoP Non-Compliance – Euro Car Parks has not applied the requirements for Grace Periods.
5) Lack of signage to ensure ‘Adequate Notice’ equates to No Contract with Driver.
************************************************** **********

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 registered keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.
Set out below a list of reasons why Euro Car Parks’ Notice to Keeper (NTK) 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:

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

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

hxxp://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:

hxxp://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)...''

(ii) Contrary to the requirements of Paragraph 9(2)(e),
The Notice to Keeper (NTK) 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—
(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;”
The NTK fails to include the above wording in sub-para (i) to invite the keeper “to pay the unpaid charges” as prescribed under POFA 2012. Both options (i) and (ii) should be offered to the Keeper.


(iii) Contrary to the requirements of Paragraph 9(2) (f),
The NTK failed to give the warning to keeper statement stated in POFA Para 9(2) (f) i.e. “warn the keeper that if, 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,
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;”
From POFA, the term ‘Date Given’ is the date that the NTK is considered to be delivered to the Keeper, in this case by post. From the ‘Letter Date’ of the NTK and using the POPA 9 (6) definition the ‘Date Given’ is the second working day after the day on which it was posted. Applying this definition this case, the ‘Given Date’ is presumed to be 28/11/16.
Then, using the correct POFA wording of “after the period of 28 days beginning with the day after that on which the notice is given..” ......“the right to recover from the keeper...” becomes the
day after the ‘Date Given’ i.e. day after 28/11/16 = 29/11/16, then after 28 days from 29/11/16 i.e. the 29th day from 29/11/16 which is 27/12/16. This is the first day of the right to recover from the Keeper.
The NTK does not use the POFA words, the NTK states;-
“After 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and the current address of the driver, we have the right to recover any unpaid part of the parking charge from you.”
The NTK uses the term ‘Date Issued’ and shows the ‘Date Issued’ as the 14/11/16.Then according to the NTK wording, the ‘Date Given’ (“which is presumed to be the second working day after the Date Issued “)becomes the second working day after the ‘Date Issued’ i.e. 16/11/16.
The first day for the right to recover the alleged charge then becomes after 29 days from 16/11/16 i.e. 15/12/16.
This is clearly contrary to the date of 27/12/16 which results from the correct application of the POFA text.
The date of 15/12/16 from the NTK text above for 29 days is also contrary to the first paragraph of the NTK which states in bold capitals:
“PAYMENT FOR THE PARKING CHARGE NOTICE IS DUE WITHIN 28 DAYS FROM 24/11/16 SHOWN ABOVE........” i.e. literally ‘DUE WITHIN’, a payment which must be paid within the period from 24/11/16 to 21/12/16.
The NTK is therefore ambiguous and contradicts itself; two interpretations can be made of the date for Keeper Liability; i.e. from 15/12/16 and within 28 days from 24/11/16. Both are contrary to the start date for Keeper Liability which results from usage of the correct POFA text.

(iv) Contrary to the requirements of Paragraph 9(2)(i)
i.e. the notice must-
(i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
The Notice to Keeper shows a ‘Letter date’ but does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

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 office staff.

Summary of NTK compliance with requirements of POFA 2012.
The Notice to Keeper posted by Euro Car Parks is shown to be non-compliant in the above four areas and Euro Car Parks has therefore forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.
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:
The on-site signage states in small text (illegible from a vehicle driving in/out of the site) that ECP are acting 'on behalf of' “XXXXXXX” (presumably the landowner); this specific wording indicates the operator has no right to sue in their own name. Under the law of agency, a contract to be made by an agent 'on behalf of' a disclosed principal is considered to be the contract of that named principal, the latter retaining control/liability. Euro Car Parks are not a party to the alleged contract formed between a driver and principal (landowner) and they cannot enforce it in their own name.

I put the operator to strict proof of their landowner contract (a complete, unredacted and contemporaneous disclosure), to include proof that they have the right in their name, to 'enforce charges in the courts if necessary'. Anything less is not only a breach of the BPA CoP Para 7, but renders the parking firm with no standing, with no more powers than any other standard contractor over visitors to the land.


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 shows two photographs of a vehicle number plate. Neither image contains a date and time stamp on the photographs, nor do they clearly identify a vehicle as entering or leaving the car park in question, which is not identifiable in the photos as any particular location at all.
The time and date information has been inserted into the letter below and separate from the photographs. The images have been cropped to display only a vehicle number plate. As these are not the original images, I require Euro Car Parks Limited to produce evidence of the original "un-cropped" images which clearly identify the vehicle and contain the embedded required date and time stamp.
I require Euro Car Parks to show that the original unprocessed/un-cropped images including embedded time stamps also to provide clear evidence to indisputably relate these photos to the parking location stated in the Notice to Keeper.
The BPA Code of Practice (CoP) states:
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner[FONT=&quot][/FONT]
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
21.3
You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

Accuracy - The alleged entry/exit times shown in the Notice to Keeper are given to the exact minute and must have been rounded up or down to the nearest minute. It is highly unlikely that both images would be captured exactly on the minute; both times will have been accurate to a number of seconds within the measured minutes.
I require Euro Car Parks to clearly show the exact timings (to the second) of the photographs to show any rounding errors when arriving at times quoted to the minute, as errors of minutes are clearly important in this case, of an alleged overstay of 11 minutes, where a Grace period of at least 10 minutes at exit is the minimum time that should be allowed, leaving 1minute to be addressed within the Grace period after entrance to the car park. (This issue of Grace Periods is addressed in the next section of this Appeal at Section 4.).
The ANPR system at the car park uses 2 cameras at the entrance and a single camera at the exit, I require Euro Car Parks to show how all cameras are integrated on a common and accurate time base and how the single quoted entrance time is derived from 2 separate measurements from 2 separate cameras. How and when this system was last tested, and provide the date and results of the last audit of the car park ANPR system by the BPA Compliance Team.
4.) BPA CoP Non-Compliance – Euro Car Parks has not applied the requirements for Grace Periods.
[FONT=&quot]Euro Car Parks[/FONT][FONT=&quot] has not fully complied with Section 13 of the BPA Code of Practice, i.e. the provision of ‘Grace Periods’.
hxxp://britishparking.co.uk/write/Documents/AOS_Code_of_Practice_October_2015_update_V6..pdf[/FONT]
[FONT=&quot]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.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
[/FONT][FONT=&quot]
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.[/FONT][FONT=&quot]This is endorsed by[/FONT] [FONT=&quot]Mr Greenslade, POPLA Lead Adjudicator[/FONT][FONT=&quot]:[/FONT][FONT=&quot] [/FONT]
[FONT=&quot]“Just as there may appropriately be a grace period at the end of the parking session there must also be a reasonable period before it is deemed to commence. As regards time to leave a car park, it must be borne in mind that there can be a delay in a vehicle physically getting out of a car park due to heavy traffic. This is not such an uncommon event as might be imagined.”[/FONT]

There are, effectively, two grace periods. The first ‘Grace Period’, as detailed in Section 13.2, covers entering the car park, finding a parking space, manoeuvring safely into a parking space, managing vulnerable passengers e.g. children, walking to and observing any legible signs at a readable distance, and deciding whether to accept/comply with the operator’s terms or deciding to drive away. The period of parking commences at the end of this period if the driver decides to stay. This point in time is much later than the time shown by any ANPR camera placed at the entrance to the car park.

The second ‘Grace Period’, as detailed in Section 13.4, covers leaving the car park and clearly states there is a MINIMUM of 10 minutes to leave.
Euro Car Parks Notice to Keeper claims an overstay of eleven minutes, clearly this is an ‘ANPR measured’ time period and is the time between entry and exit (if the ANPR data is proven to be without error).
It is not the time period for which the vehicle is actually parked in an appropriate parking space, as it should be reduced by the total time of the 1st and 2nd Grace Periods, spent as described above.
As Section 13.4 determines a reasonable second ‘Grace Period’ for leaving the car park should be a MINIMUM of 10 minutes, it is reasonable to say that the remaining one minute of the overstay be covered by the first ‘Grace Period’ detailed in Section 13.2.
As pointed out to Euro Car Parks in the initial appeal letter, an honest application of the BPA CoP Grace Periods recommendations, renders the alleged overstay from eleven minutes to zero. At this point there should be no case to answer and no Parking Charge due.
[FONT=&quot]
[/FONT]


5) Lack of signage to ensure ‘Adequate Notice’ equates to No Contract with Driver.
From Schedule 4 POFA para 2 the requirements of adequate notice to drivers are given as:-
(2)The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).
(3)For the purposes of sub-paragraph (2) “adequate notice” means notice given by—
(a)the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or
(b)where no such requirements apply, 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.
The signs on site are not adequate to meet this requirement, the image provided as an example by Euro Car Parks (in their rejection of my appeal letter) are taken from a few feet so as to be legible. This is definitely not the viewpoint available to a driver entering the car park. Signs are not well-placed or legible from all points within the car park.
Photograph removed showing entrance to CarPark
(in the above photograph shown)It is impossible to read the parking time allowed, conditions and charge for overstay, while negotiating a left turn into the car park; signs do not give adequate notice as required by POFA 2012.
(in the photograph shown below) The Parking information is almost ‘hidden’ amongst a host of advertising notices.
Photograph removed showing ECP signage
Unless the signs and the contained message are conspicuous and crystal-clear to the driver, the driver’s priority on entering a car park is to safely find a parking space and safely park their car without injury/damage to pedestrians or other vehicles.
The result is that the driver entering and later leaving, will not have passed a readable sign with full terms, nor with the 'charge' in large readable font. This renders this site non-comparable with the car park in ParkingEye v Beavis and is evidence that no contract was formed at all.
In particular the £90 sum of the charge is not clear and legible (to a driver) in 'large lettering' on the signs. This contravenes Schedule 4 of the POFA which requires 'adequate notice of the charge' as a matter of statute.
This case is not like the Beavis case in terms of the signs, the agent/principal interests and lack of commercial justification, so that case is not an authority upon which this operator can rely.
It is far more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000

hxxp://bailii.org/ew/cases/EWCA/Civ/2000/106.html

No terms capable of being seen and read = no contract formed, as was found in Vine at 40:

''Mrs Vine did not see the sign...that is sufficient for her to succeed on the facts of this case. I would also find, if it were necessary to the decision, that the sign in this case was not sufficiently prominently and clearly positioned and displayed to sustain any contention that she consented to, or willingly assumed, the risk...It was not intrinsically obvious, apart from signs, that the area where Mrs Vine parked was private property. [...] The sign, which Roch L.J. has described, was...not on the occasion in question visible from the driver's seat of Mrs Vine's car when she parked it.''

This is binding case law; a Court of Appeal decision far more applicable than the irrelevant 'Beavis case' in a situation where the driver had no fair opportunity to learn of terms by which they would be bound.
Final Summary
Euro Car Parks is clearly non-compliant with POFA 2012 in the presentation of the Notice to Keeper.
Euro Car Parks has no standing to sue and pursue parking charges in its own name. It has no standing.
Euro Car Parks is non-compliant with its own regulating organisation the BPA in respect of the provision of evidence from ANPR and associated camera images.
Euro Car Parks is non-compliant with its own regulating organisation the BPA in respect of the application of Grace periods to cover both entry and exit from the car park.
Euro Car Parks provision of signage fails to meet the requirement of POFA 2012 in respect of the need to provide adequate notice of the parking charge and the terms and conditions of any alleged contract as considered appropriate by Euro Car Parks.
I contend that after careful consideration of these facts by the Independent Adjudicator, this Appeal should be allowed and the Parking Charge dismissed.

DrBob_2

Ok Just uploaded the first draft and noticed that the format italic bold and paragraph structure is doing its own thing in places.
The word file original is clean and the converted pdf is ok.
When I tried to copy the pdf and then paste, the paragraph structure was lost and sentences just concatenated, leaving out line feeds. So I then copied pasted the .doc file, which gives the result shown. Anything I am missing ??
Rgds DrBob

DrBob_2

2nd Attempt to load up appeal draft by pasting pdf file....
The paste into the online editor forces a single font format, where the pdf file contains italic for quotes from POFA and courier for other text, I have used the online editor to separate some of the paragraphs to make it easier to read with bold for the section headings. I have looked thru the forum rules for a how to/sticky to get a faithful paste but no joy. Hope the revised doc below is now readable,
Thanks.

My effort at a POPLA Appeal is given below
In order to keep the information anonymous some of the key points are edited out, but to make
sense there is some info that is needed
The copy of the Notice to Keeper is shown at Post#4
The Date of Issue on the NTK (edited out in Post #4) is 14 Nov 16.
Photographs of the Car Park signage are edited out in the following document for posting on the
Forum.


Vehicle Registration Number xxxxxxxx
PCN Reference xxxxxxxxxxx
Issued by Euro Car Parks Limited
POPLA Reference.xxxxxxxxxx
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 is not established - The Notice to Keeper is not compliant with the POFA 2012
2) No Landowner Authority
3) BPA Code of Practice - non-compliance - photo evidence
4)BPA CoP Non-Compliance – Euro Car Parks has not applied the requirements for Grace Periods.
5) Lack of signage to ensure ‘Adequate Notice’ equates to No Contract with Driver.
************************************************** **********
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 registered keeper, this right is strictly subject to
statutory conditions being met by the operator, without which the right to 'keeper liability' does not
exist.
Set out below a list of reasons why Euro Car Parks’ Notice to Keeper (NTK) 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:
hxxp://parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html
hxxp://parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html
hxxp://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:
hxxp://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)...''
(ii) Contrary to the requirements of Paragraph 9(2)(e),
The Notice to Keeper (NTK) 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—
(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;”
The NTK fails to include the above wording in sub-para (i) to invite the keeper “to pay the unpaid
charges” as prescribed under POFA 2012. Both options (i) and (ii) should be offered to the Keeper.
(iii) Contrary to the requirements of Paragraph 9(2) (f),
The NTK failed to give the warning to keeper statement stated in POFA Para 9(2) (f) i.e. “warn the
keeper that if, 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,
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;”
From POFA, the term ‘Date Given’ is the date that the NTK is considered to be delivered to the
Keeper, in this case by post. From the ‘Letter Date’ of the NTK and using the POPA 9 (6) definition
the ‘Date Given’ is the second working day after the day on which it was posted. Applying this
definition this case, the ‘Given Date’ is presumed to be 28/11/16.
Then, using the correct POFA wording of “after the period of 28 days beginning with the day after
that on which the notice is given..” ......“the right to recover from the keeper...” becomes the
day after the ‘Date Given’ i.e. day after 28/11/16 = 29/11/16, then after 28 days from 29/11/16 i.e.
the 29th day from 29/11/16 which is 27/12/16. This is the first day of the right to recover from the
Keeper.
The NTK does not use the POFA words, the NTK states;-
“After 29 days from the date given (which is presumed to be the second working day after the Date
Issued), the parking charge has not been paid in full and we do not know both the name and the
current address of the driver, we have the right to recover any unpaid part of the parking charge
from you.”
The NTK uses the term ‘Date Issued’ and shows the ‘Date Issued’ as the 14/11/16.Then according to
the NTK wording, the ‘Date Given’ (“which is presumed to be the second working day after the Date
Issued “)becomes the second working day after the ‘Date Issued’ i.e. 16/11/16.
The first day for the right to recover the alleged charge then becomes after 29 days from 16/11/16
i.e. 15/12/16.
This is clearly contrary to the date of 27/12/16 which results from the correct application of the
POFA text.
The date of 15/12/16 from the NTK text above for 29 days is also contrary to the first paragraph of
the NTK which states in bold capitals:
“PAYMENT FOR THE PARKING CHARGE NOTICE IS DUE WITHIN 28 DAYS FROM 24/11/16 SHOWN
ABOVE........” i.e. literally ‘DUE WITHIN’, a payment which must be paid within the period from
24/11/16 to 21/12/16.
The NTK is therefore ambiguous and contradicts itself; two interpretations can be made of the date
for Keeper Liability; i.e. from 15/12/16 and within 28 days from 24/11/16. Both are contrary to the
start date for Keeper Liability which results from usage of the correct POFA text.
(iv) Contrary to the requirements of Paragraph 9(2)(i)
i.e. the notice must-
(i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
The Notice to Keeper shows a ‘Letter date’ but does not specify the date on which the notice is sent
(where it is sent by post) or given (in any other case).
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 office staff.

Summary of NTK compliance with requirements of POFA 2012.
The Notice to Keeper posted by Euro Car Parks is shown to be non-compliant in the above four areas
and Euro Car Parks has therefore forfeited its right to recover any unpaid parking charges from the
keeper of the vehicle.
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:
The on-site signage states in small text (illegible from a vehicle driving in/out of the site) that ECP are
acting 'on behalf of' “XXXXXXX” (presumably the landowner); this specific wording indicates the
operator has no right to sue in their own name. Under the law of agency, a contract to be made by
an agent 'on behalf of' a disclosed principal is considered to be the contract of that named principal,
the latter retaining control/liability. Euro Car Parks are not a party to the alleged contract formed
between a driver and principal (landowner) and they cannot enforce it in their own name.
I put the operator to strict proof of their landowner contract (a complete, unredacted and
contemporaneous disclosure), to include proof that they have the right in their name, to 'enforce
charges in the courts if necessary'. Anything less is not only a breach of the BPA CoP Para 7, but
renders the parking firm with no standing, with no more powers than any other standard contractor
over visitors to the land.

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 shows two photographs of a vehicle number plate. Neither image contains
a date and time stamp on the photographs, nor do they clearly identify a vehicle as entering or
leaving the car park in question, which is not identifiable in the photos as any particular location at
all.
The time and date information has been inserted into the letter below and separate from the
photographs. The images have been cropped to display only a vehicle number plate. As these are
not the original images, I require Euro Car Parks Limited to produce evidence of the original "uncropped"
images which clearly identify the vehicle and contain the embedded required date and
time stamp.
I require Euro Car Parks to show that the original unprocessed/un-cropped images including
embedded time stamps also to provide clear evidence to indisputably relate these photos to the
parking location stated in the Notice to Keeper.
The BPA Code of Practice (CoP) states:
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car
parks, as long as you do this in a reasonable, consistent and transparent manner
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality
check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
21.3
You must keep any ANPR equipment you use in your car parks in good working order. You need to
make sure the data you are collecting is accurate, securely held and cannot be tampered with. The
processes that you use to manage your ANPR system may be audited by our compliance team or our
agents.
Accuracy - The alleged entry/exit times shown in the Notice to Keeper are given to the exact minute
and must have been rounded up or down to the nearest minute. It is highly unlikely that both
images would be captured exactly on the minute; both times will have been accurate to a number of
seconds within the measured minutes.
I require Euro Car Parks to clearly show the exact timings (to the second) of the photographs to
show any rounding errors when arriving at times quoted to the minute, as errors of minutes are
clearly important in this case, of an alleged overstay of 11 minutes, where a Grace period of at least
10 minutes at exit is the minimum time that should be allowed, leaving 1minute to be addressed
within the Grace period after entrance to the car park. (This issue of Grace Periods is addressed in
the next section of this Appeal at Section 4.).
The ANPR system at the car park uses 2 cameras at the entrance and a single camera at the exit, I
require Euro Car Parks to show how all cameras are integrated on a common and accurate time base
and how the single quoted entrance time is derived from 2 separate measurements from 2 separate
cameras. How and when this system was last tested, and provide the date and results of the last
audit of the car park ANPR system by the BPA Compliance Team.

4.) BPA CoP Non-Compliance – Euro Car Parks has not applied the requirements for Grace Periods.
Euro Car Parks has not fully complied with Section 13 of the BPA Code of Practice, i.e. the provision
of ‘Grace Periods’.
hxxp://britishparking.co.uk/write/Documents/AOS_Code_of_Practice_October_2015_update_V6..p
df
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.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to
stay or go. If the driver is on your land without permission you should still allow them a grace period
to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our
agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking
contract has ended, before you take enforcement action. If the location is one where parking is
normally permitted, the Grace Period at the end of the parking period should be a minimum of 10
minutes.
This is endorsed by Mr Greenslade, POPLA Lead Adjudicator:
“Just as there may appropriately be a grace period at the end of the parking session there must also
be a reasonable period before it is deemed to commence. As regards time to leave a car park, it must
be borne in mind that there can be a delay in a vehicle physically getting out of a car park due to
heavy traffic. This is not such an uncommon event as might be imagined.”
There are, effectively, two grace periods. The first ‘Grace Period’, as detailed in Section 13.2, covers
entering the car park, finding a parking space, manoeuvring safely into a parking space, managing
vulnerable passengers e.g. children, walking to and observing any legible signs at a readable distance,
and deciding whether to accept/comply with the operator’s terms or deciding to drive away. The
period of parking commences at the end of this period if the driver decides to stay. This point in time
is much later than the time shown by any ANPR camera placed at the entrance to the car park.
The second ‘Grace Period’, as detailed in Section 13.4, covers leaving the car park and clearly states
there is a MINIMUM of 10 minutes to leave.
Euro Car Parks Notice to Keeper claims an overstay of eleven minutes, clearly this is an ‘ANPR
measured’ time period and is the time between entry and exit (if the ANPR data is proven to be
without error).
It is not the time period for which the vehicle is actually parked in an appropriate parking space, as it
should be reduced by the total time of the 1st and 2nd Grace Periods, spent as described above.
As Section 13.4 determines a reasonable second ‘Grace Period’ for leaving the car park should be a
MINIMUM of 10 minutes, it is reasonable to say that the remaining one minute of the overstay be
covered by the first ‘Grace Period’ detailed in Section 13.2.
As pointed out to Euro Car Parks in the initial appeal letter, an honest application of the BPA CoP
Grace Periods recommendations, renders the alleged overstay from eleven minutes to zero. At this
point there should be no case to answer and no Parking Charge due.

5) Lack of signage to ensure ‘Adequate Notice’ equates to No Contract with Driver.
From Schedule 4 POFA para 2 the requirements of adequate notice to drivers are given as:-
(2)The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of
which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant
land).
(3)For the purposes of sub-paragraph (2) “adequate notice” means notice given by—
(a)the display of one or more notices in accordance with any applicable requirements prescribed in
regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or
(b)where no such requirements apply, 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.
The signs on site are not adequate to meet this requirement, the image provided as an example by
Euro Car Parks (in their rejection of my appeal letter) are taken from a few feet so as to be legible.
This is definitely not the viewpoint available to a driver entering the car park. Signs are not wellplaced
or legible from all points within the car park.
Photograph removed showing entrance to CarPark
(in the above photograph shown)It is impossible to read the parking time allowed, conditions and
charge for overstay, while negotiating a left turn into the car park; signs do not give adequate notice
as required by POFA 2012.
(in the photograph shown below) The Parking information is almost ‘hidden’ amongst a host of
advertising notices.
Photograph removed showing ECP signage
Unless the signs and the contained message are conspicuous and crystal-clear to the driver, the
driver’s priority on entering a car park is to safely find a parking space and safely park their car
without injury/damage to pedestrians or other vehicles.
The result is that the driver entering and later leaving, will not have passed a readable sign with full
terms, nor with the 'charge' in large readable font. This renders this site non-comparable with the car
park in ParkingEye v Beavis and is evidence that no contract was formed at all.
In particular the £90 sum of the charge is not clear and legible (to a driver) in 'large lettering' on the
signs. This contravenes Schedule 4 of the POFA which requires 'adequate notice of the charge' as a
matter of statute.
This case is not like the Beavis case in terms of the signs, the agent/principal interests and lack of
commercial justification, so that case is not an authority upon which this operator can rely.
It is far more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000
hxxp://bailii.org/ew/cases/EWCA/Civ/2000/106.html
No terms capable of being seen and read = no contract formed, as was found in Vine at 40:
''Mrs Vine did not see the sign...that is sufficient for her to succeed on the facts of this case. I would
also find, if it were necessary to the decision, that the sign in this case was not sufficiently prominently
and clearly positioned and displayed to sustain any contention that she consented to, or willingly
assumed, the risk...It was not intrinsically obvious, apart from signs, that the area where Mrs Vine
parked was private property. [...] The sign, which Roch L.J. has described, was...not on the occasion in
question visible from the driver's seat of Mrs Vine's car when she parked it.''
This is binding case law; a Court of Appeal decision far more applicable than the irrelevant 'Beavis
case' in a situation where the driver had no fair opportunity to learn of terms by which they would be
bound.

Final Summary
Euro Car Parks is clearly non-compliant with POFA 2012 in the presentation of the Notice to Keeper.
Euro Car Parks has no standing to sue and pursue parking charges in its own name. It has no standing.
Euro Car Parks is non-compliant with its own regulating organisation the BPA in respect of the
provision of evidence from ANPR and associated camera images.
Euro Car Parks is non-compliant with its own regulating organisation the BPA in respect of the
application of Grace periods to cover both entry and exit from the car park.
Euro Car Parks provision of signage fails to meet the requirement of POFA 2012 in respect of the need
to provide adequate notice of the parking charge and the terms and conditions of any alleged
contract as considered appropriate by Euro Car Parks.
I contend that after careful consideration of these facts by the Independent Adjudicator, this Appeal
should be allowed and the Parking Charge dismissed.

Coupon-mad

Not sure why you are making the same mistake as 'vilwad' did in the post I linked for you to read.

I told them in post #2 there, not to lead on 'no keeper liability' because if you look, your NTK is not non-compliant in the way you have copied (that's old). They then posted the winning version in post #3. Your draft doesn't look like the final version of the one I linked, POPLA will not be on your side if you hit them with wrong points about the NTK (ECP changed it in 2016 which is what I said in that thread).

You could have pretty much copied his post #3.

Umkomaas

Over 7,000 words between the two appeals, with an expectation that regulars pick through them, compare, then spot the errors/omissions. The unrealistical expectations seem to be increasing on a regular basis!

Coupon-mad

It would be fine if it was all based on templates because we could skim-read it, but the first point isn't even true in 2017. ECP's latest NTK isn't bad...but they still fold when a decent, long POPLA appeal (NOT based on no keeper liability) comes in.

DrBob_2

Ok thanks for the comments



i)First my apologies for the length of the posted copies of the appeal, they are both the same content, only the fonts are different. Both are a pain to read with the paras structure stripped out. I understand.


ii)Thanks Coupon Mad, I shall look back at the template versions in the Newby Thread #3, and put together a template based appeal. Perhaps if I post each section (Landowner, Grace, and Signage) separately it will be easier


Bear with me on this last point. Your comment regarding the ECP NTK being more POFA compliant, and not basing my appeal around no keeper liability.
The ECP NTK copy I posted does appear to comply with POFA re the 28 days beginning after the date given(POFA), compared with 29 days after the date given (NTK).

But the NTK states the date given is presumed to be the 2nd working day after the Date Issued.


NTK detail not shown on posted copy of NTK
Date of alleged parking breach 14/11/16
Date of Issue given as 14/11/16 (same date as alleged breach ?)
Letter Date given as 24/11/16.


Using NTK text, the NTK gives the Date Issued as 14/11/16, add 2 days 16/11/16 then 29 days for Keeper Liability 15/12/16


Using ‘POFA text’ date given (received in post= NTK letter date 24/11/17 add 2 working days) is 28/11/16, add 1 day 29/11/16 then 28 days for Keeper Liability 27/12/16.


Using a ‘Date issued of 14/11/16’ and the NTK definition gives a different date for Keeper Liability compared to POFA ‘given date of 28/11/17’.

DrBob_2

Ok after previous comment to drop the NTK POFA non compliance effort as it is considered compliant; I found another case to base my POPLA appeal 1st section this time:-

I wish to appeal the parking charge notice Euro Car Parks issued against the vehicle in question. I would like to have the parking charge notice cancelled based on the following grounds:
1) 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
2) BPA Code of Practice - further non-compliance (photo evidence).
3) The ANPR system is neither reliable nor accurate.
4) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.
5) No evidence of Landowner Authority

1) 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.''

Is this Ok it is a straight Copyn Paste from a recent ECP ?
Thanks for the help.

DrBob_2

Just got the result of my POPLA appeal....

Verification Code ###########


Decision Successful

Assessor Name ############

Assessor summary of operator case
The operator has failed to provide any evidence to demonstrate its case against the appellant.


Assessor summary of your case
The appellant’s case is that they are appealing as the registered keeper of the vehicle and the operator has not complied with the conditions set out in the Protection of Freedoms Act (PoFA) 2012, that the operator does not have the authority to issue parking charges at the site, that the signage is insufficient, no grace period allowed and automatic number plate recognitions (ANPR) systems are not reliable or synchronised.


Assessor supporting rational for decision
As the operator has not provided a response to the appeal, it has not demonstrated that the Parking Charge Notice is valid.




Thanks for the help of the experts in the forum and the other people's earlier efforts which helped construct my appeal. If its of use to anyone in the future pl feel free to use.