POPLA Appeal Form

razil

Hi,

I wonder if you could help. I have a POPLA appeal all set up and ready to go but I'm struggling to download it. I have set it up as a letter but the form splits it into different sections and it won't let me down load many words.

Do I just put the basics in the box and attach the letter as an option, or split it between the different options ont the POPLA site.


Thank you

Quentin

See the newbies faq thread at the top of the forum (#3 covers how to send in your popla appeal and avoid the character limit)

Coupon-mad

razil wrote: »

Hi,

I wonder if you could help. I have a POPLA appeal all set up and ready to go but I'm struggling to download it. I have set it up as a letter but the form splits it into different sections and it won't let me down load many words.

Do I just put the basics in the box and attach the letter as an option, or split it between the different options ont the POPLA site.


Thank you

Do show us your POPLA appeal for critique. Is it based on the long templates in post #3 of the NEWBIES thread? Needs to be long.

You are recommended to only upload it as a detailed PDF (including embedded photos to illustrate it like a nice story book, if you have them) under 'other' which is what the NEWBIES thread post #3 tells you. Don't rush this, don't tick boxes like 'I didn't see the signs' and forget the daft 2000 word/character count.

razil

Do show us your POPLA appeal for critique. Is it based on the long templates in post #3 of the NEWBIES thread? Needs to be long.

You are recommended to only upload it as a detailed PDF (including embedded photos to illustrate it like a nice story book, if you have them) under 'other' which is what the NEWBIES thread post #3 tells you. Don't rush this, don't tick boxes like 'I didn't see the signs' and forget the daft 2000 word/character count.

Thank you for the offer. I used the template in the appeal and also looked at a couple of others that you helped with and re-worded it from them. The appeal is over 5000 words.

Brief background Company ECP at Siddals car park Derby. They say I was 18 mins over camera on entry and exit. The driver knew what time the parking was up and got back bang on time. The other issue is the driver actually paid over the 1hr parking but not up to the 2hr due to change refusal issues with the machine.




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) The minimum grace period was not allowed by the operator
5) No genuine pre-estimate of loss – case can be differentiated from ParkingEye-v-Beavis
6) The ANPR system is neither reliable nor accurate.
7) Lack of legible signage - 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 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 period of parking and this cannot reasonably be assumed on the balance of probabilities.
(ii) 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.


(iii) 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.


(iv) 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;''


(v) 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;


(vi) 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:

URLLINK.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greensladeURLLINK

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.

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) The minimum grace period was not allowed by the Operator
British Parking Association Code of Practice 13.1 – 13.4 states:
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.
Also, under the BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers
"…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (18.5).

And that when using Automatic Number Plate Recognition (ANPR),
"…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge." (30.2)

The above states that a time no less than 20 minutes should be allowed for first, entry and consideration of the contract, and second, leaving the property. The times stated on the NTK show only the time of entry and exit (11.02 and 12.20 respectively). These do not indicate the time in which the vehicle parked. The charges laid out in the signage are only for the time that the vehicle was parked. The times stated on the NTK, however, are clear evidence that the vehicle entered the car park and left again within the grace period specified by the BPA CoP to protect consumers in the time that they need to find a parking space, consider the contract, and leave the car park again.

In this case, the driver used this time to find a parking space, consider the terms of the contract, and decline the offer.The mention of a minimum of 10 minutes is exactly this, a minimum. The time needed to complete all these actions are dependent on a number of wildly varying factors, including traffic, lighting and parking conditions, driver’s eyesight and driving ability and mental faculties. For this reason, a minimum amount is specified, but the maximum time allowed for these tasks to be completed are not. Further to this, the signage makes no indication of how long a driver may be on the site without necessarily being parked ,before a parking penalty will be charged. This leaves the driver uncertain to the terms of the contract, which means that there was no full acceptance of the contract to be breached.

5) No comparable legitimate interest nor clear prominent signage terms – the case is a simple economic transaction (re a quantified tariff) which can be differentiated from the 'entirely different' complex contract in ParkingEye-v-Beavis
•

•

razil

PArt 2


• 5) No genuine pre-estimate of loss – case can be differentiated from ParkingEye-v-Beavis

This car park is Pay and Display and as far as I can ascertain as keeper, a payment may have been made. Having received the Notice in the post I had very little information (see point #1) so went and checked the signage and it seems that up to 16 minutes of parking would have cost £0.80 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £0.80 at the most. Euro Car Parks have not told me these details, despite it being a prerequisite of Schedule 4 (see Point #1).

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges. In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.
''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

The Operator may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and

e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In this case the driver of the vehicle had in fact paid £2.60 as opposed to the £2.50 parking fee required for the first hour. The difference between 1 hour and 2 hours parking is 50 pence as the tariff for 2hr parking is £3.00. I would therefore submit that the additional money paid and pro-rated would in fact cover 10 minutes of the parking.
I suggest The only interest the Operator has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise .The Operator cannot argue that a legitimate interest is simply ensuring that payment is made , i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of less than 1 pound. The charge is clearly a penalty following the judgment of the Supreme Court.
This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states:

"43. It is clear that the purpose of the parking charge is to deter those who use the car
park from overstaying beyond the permitted parking time. So, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.

45. The contract in the present case is entirely different. Although there is an economic transaction
between the car park operator and the driver who uses the car park the actual amount paid by the driver was £2.60 rather than the £2.50 required for the 1hr parking fee .,

46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the parking criteria. That is afforded by the
parking charge of £100. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to
strike down a provision of this kind, in relation to a contract such as we are concerned
with, merely on the basis that the contractual provision is a disincentive, or deterrent,
against overstaying. When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that
which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence
of the non-payment of a very small sum, and that the former should not be
considered a penalty, appears to be a contradiction in terms, the case being
precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to
assess the real damages sustained by the breach of the agreement.”


This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the operator and motorist .There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner , not the Operator , may be entitled. The demanded charge is without intellectual dishonesty, a clearly unenforceable penalty . 6) The ANPR system is neither reliable nor accurate.

Euro Car Parks’ evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that the driver may have driven in, realised it was pay and display then driven out. The BPA even mention this as an inherent problem with ANPR on their website;
URLLINKbritishparking.co.uk/How-does-ANPR-workURLLINK


The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Euro Car Parks to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of my vehicle entering and leaving the car park at specific times (not shown within the photographic evidence), it is vital that Euro Car Parks produces evidence in response to these points.

In addition to showing their maintenance records, I require Euro Car Parks to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Euro Car Parks to strict proof to the contrary

7) Lack of signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The signs were not visible until the vehicle had entered the car park, I put Euro car Parks 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. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore as stated (point #4) a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore as the registered keeper; 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 used the car that day. 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 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, it became apparently clear that the sign is not visibal until the car has already entered the carpark

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 that until they had already parked and so there was no consideration or acceptance and no contract agreed between the parties until after the driver had entered the carpark and already parked the vehicle..

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

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.



I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.


Thank you for having a look.

Coupon-mad

I have a few comments to improve it:

- re the NTK, that's an old summary of how Euro Car Parks' old NTKs used to fail to meet the requirements of Sch4. But now they are better, so remove the points that make no sense. I think their current NTK isn't bad for wording, in fact (sorry!).

- You have shown two headings for #5 and this one is better:

5) No comparable legitimate interest nor clear prominent signage terms – the case is a simple economic transaction (re a quantified tariff) which can be differentiated from the 'entirely different' complex contract in ParkingEye-v-Beavis

...than this one (never mention the word loss):

5) No genuine pre-estimate of loss – case can be differentiated from ParkingEye-v-Beavis

For that reason, delete all these pargraphs or POPLA's eyes will glaze over and they will quote the Beavis case at you by trotting out their template rejection:

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges. In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.
''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

I would also remove this because it makes no sense to talk about the driver making a payment at the machine and being 16 minutes over, then pretending that you can't discount that it was a double visit:

As keeper I cannot discount that the driver may have driven in, realised it was pay and display then driven out. The BPA even mention this as an inherent problem with ANPR on their website;
URLLINKbritishparking.co.uk/How-does-ANPR-workURLLINK

The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

I would also remove this long paragraph which is 3 years old and has never worked at POPLA and talks about the Fox-Jones case which was never confirmed, has no transcript and no claim number, so it means nothing for anyone:

In addition to showing their maintenance records, I require Euro Car Parks to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Euro Car Parks to strict proof to the contrary

And there is a typo here, should be 'visible':

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, it became apparently clear that the sign is not visibal until the car has already entered the carpark

Can you show us how it looks without all that?

razil

Thank you. Amended version below.

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) The minimum grace period was not allowed by the operator
5) No genuine pre-estimate of loss – case can be differentiated from ParkingEye-v-Beavis
6) The ANPR system is neither reliable nor accurate.
7) Lack of legible signage - 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 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 period of parking and this cannot reasonably be assumed on the balance of probabilities.
(ii) 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.


(iii) 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.


(iv) 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;''


(v) 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;


(vi) 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:

URLLINK.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greensladeURLLINK

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.

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) The minimum grace period was not allowed by the Operator
British Parking Association Code of Practice 13.1 – 13.4 states:
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.
Also, under the BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers
"…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (18.5).

And that when using Automatic Number Plate Recognition (ANPR),
"…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge." (30.2)

The above states that a time no less than 20 minutes should be allowed for first, entry and consideration of the contract, and second, leaving the property. The times stated on the NTK show only the time of entry and exit (11.02 and 12.20 respectively). These do not indicate the time in which the vehicle parked. The charges laid out in the signage are only for the time that the vehicle was parked. The times stated on the NTK, however, are clear evidence that the vehicle entered the car park and left again within the grace period specified by the BPA CoP to protect consumers in the time that they need to find a parking space, consider the contract, and leave the car park again.

In this case, the driver used this time to find a parking space, consider the terms of the contract, and decline the offer.The mention of a minimum of 10 minutes is exactly this, a minimum. The time needed to complete all these actions are dependent on a number of wildly varying factors, including traffic, lighting and parking conditions, driver’s eyesight and driving ability and mental faculties. For this reason, a minimum amount is specified, but the maximum time allowed for these tasks to be completed are not. Further to this, the signage makes no indication of how long a driver may be on the site without necessarily being parked ,before a parking penalty will be charged. This leaves the driver uncertain to the terms of the contract, which means that there was no full acceptance of the contract to be breached.
5) No comparable legitimate interest nor clear prominent signage terms – the case is a simple economic transaction (re a quantified tariff) which can be differentiated from the 'entirely different' complex contract in ParkingEye-v-Beavis

This car park is Pay and Display and as far as I can ascertain as keeper, a payment may have been made. Having received the Notice in the post I had very little information (see point #1) so went and checked the signage and it seems that up to 16 minutes of parking would have cost £0.80 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £0.80 at the most. Euro Car Parks have not told me these details, despite it being a prerequisite of Schedule 4 (see Point #1).

The Operator may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and

e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In this case the driver of the vehicle had in fact paid £2.60 as opposed to the £2.50 parking fee required for the first hour. The difference between 1 hour and 2 hours parking is 50 pence as the tariff for 2hr parking is £3.00. I would therefore submit that the additional money paid and pro-rated would in fact cover 10 minutes of the parking.
I suggest The only interest the Operator has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise .The Operator cannot argue that a legitimate interest is simply ensuring that payment is made , i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of less than 1 pound. The charge is clearly a penalty following the judgment of the Supreme Court.
This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states:

"43. It is clear that the purpose of the parking charge is to deter those who use the car
park from overstaying beyond the permitted parking time. So, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.

45. The contract in the present case is entirely different. Although there is an economic transaction
between the car park operator and the driver who uses the car park the actual amount paid by the driver was £2.60 rather than the £2.50 required for the 1hr parking fee .,

46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the parking criteria. That is afforded by the
parking charge of £100. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to
strike down a provision of this kind, in relation to a contract such as we are concerned
with, merely on the basis that the contractual provision is a disincentive, or deterrent,
against overstaying. When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that
which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence
of the non-payment of a very small sum, and that the former should not be
considered a penalty, appears to be a contradiction in terms, the case being
precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to
assess the real damages sustained by the breach of the agreement.”


This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the operator and motorist .There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner , not the Operator , may be entitled. The demanded charge is without intellectual dishonesty, a clearly unenforceable penalty . 6) The ANPR system is neither reliable nor accurate.

Euro Car Parks’ evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Euro Car Parks to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of my vehicle entering and leaving the car park at specific times (not shown within the photographic evidence), it is vital that Euro Car Parks produces evidence in response to these points.

7) Lack of signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The signs were not visible until the vehicle had entered the car park, I put Euro car Parks 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. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore as stated (point #4) a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore as the registered keeper; 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 used the car that day. 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.''

Umkomaas

Bullet point header: #5

5) No genuine pre-estimate of loss – case can be differentiated from ParkingEye-v-Beavis

Appeal point paragraph header: #5

5) No comparable legitimate interest nor clear prominent signage terms – the case is a simple economic transaction (re a quantified tariff) which can be differentiated from the 'entirely different' complex contract in ParkingEye-v-Beavis

Don't correlate!

Bullet point header: #6

6) The ANPR system is neither reliable nor accurate.

Appeal paragraph header: #6

???

Can't find one.

Have you used the ready-written template POPLA appeal points from the NEWBIES FAQ sticky post #3? On a quick read I didn't spot them, but it was a cursory glance-over!

Coupon-mad

I think #1 does you no favours because as I said before:

- re the NTK, that's an old summary of how Euro Car Parks' old NTKs used to fail to meet the requirements of Sch4. But now they are better, so remove the points that make no sense. I think their current NTK isn't bad for wording, in fact (sorry!).

I really think throwing some old wording in saying the NTK doesn't say this and it doesn't say that, when it now does (I think, you can check!) will not help. POPLA will take a look and discount what you are saying.

razil

Thank you I've taken all your points on board. This is the latest draft:

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Euro Car Parks issued against it. I would like to have the parking charge notice cancelled based on the following grounds:


1) No Landowner Authority
2) BPA Code of Practice - non-compliance
3) The minimum grace period was not allowed by the operator
4) No comparable legitimate interest nor clear prominent signage terms – the case is a simple economic transaction (re a quantified tariff) which can be differentiated from the 'entirely different' complex contract in ParkingEye-v-Beavis
5) The ANPR system is neither reliable nor accurate.
6) Lack of legible signage - no contract with driver


1) 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.

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.


2) 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.



3) The minimum grace period was not allowed by the Operator British Parking Association
Code of Practice 13.1 – 13.4 states:
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 leavebefore you take enforcement action.
13.3 You should be prepared to tell us the specific grace periodat 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 endof the parking period should be a minimum of 10 minutes
Also, under the BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers "…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (18.5).

And that when using Automatic Number Plate Recognition (ANPR),
"…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge." (30.2)

The above states that a time no less than 20 minutes should be allowed for first, entry and consideration of the contract, and second, leaving the property. The times stated on the NTK show only the time of entry and exit (11.02 and 12.20 respectively). These do not indicate the time in which the vehicle parked. The charges laid out in the signage are only for the time that the vehicle was parked. The times stated on the NTK, however, are clear evidence that the vehicle entered the car park and left again within the grace period specified by the BPA CoP to protect consumers in the time that they need to find a parking space, consider the contract, and leave the car park again.

In this case, the driver used this time to find a parking space, consider the terms of the contract, and decline the offer.The mention of a minimum of 10 minutes is exactly this, a minimum. The time needed to complete all these actions are dependent on a number of wildly varying factors, including traffic, lighting and parking conditions, driver’s eyesight and driving ability and mental faculties. For this reason, a minimum amount is specified, but the maximum time allowed for these tasks to be completed are not. Further to this, the signage makes no indication of how long a driver may be on the site without necessarily being parked ,before a parking penalty will be charged. This leaves the driver uncertain to the terms of the contract, which means that there was no full acceptance of the contract to be breached.
4) No comparable legitimate interest nor clear prominent signage terms – the case is a simple economic transaction (re a quantified tariff) which can be differentiated from the 'entirely different' complex contract in ParkingEye-v-Beavis

This car park is Pay and Display and as far as I can ascertain as keeper, a payment may have been made. Having received the Notice in the post I had very little information (see point #1) so went and checked the signage and it seems that up to 16 minutes of parking would have cost £0.80 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £0.80 at the most. Euro Car Parks have not told me these details, despite it being a prerequisite of Schedule 4 (see Point #1).

The Operator may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :
“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and

e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In this case the driver of the vehicle had in fact paid £2.60 as opposed to the £2.50 parking fee required for the first hour. The difference between 1 hour and 2 hours parking is 50 pence as the tariff for 2hr parking is £3.00. I would therefore submit that the additional money paid and pro-rated would in fact cover 10 minutes of the parking.
I suggest The only interest the Operator has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise .The Operator cannot argue that a legitimate interest is simply ensuring that payment is made , i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of less than 1 pound. The charge is clearly a penalty following the judgment of the Supreme Court.
This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states:

"43. It is clear that the purpose of the parking charge is to deter those who use the car
park from overstaying beyond the permitted parking time. So, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.

45. The contract in the present case is entirely different. Although there is an economic transaction
between the car park operator and the driver who uses the car park the actual amount paid by the driver was £2.60 rather than the £2.50 required for the 1hr parking fee .,

46. The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the parking criteria. That is afforded by the parking charge of £100. It would not be afforded by a system of imposing a rate per hour according to the time overstayed, unless that rate were also substantial, and well above what might be regarded as a market rate for the elapsed time, even if the market rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is a disincentive, or deterrent, against overstaying. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) Bing. 141 at 148:

“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real amages sustained by the breach of the agreement.”


This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the operator and motorist .There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner , not the Operator , may be entitled. The demanded charge is without intellectual dishonesty, a clearly unenforceable penalty .

5) The ANPR system is neither reliable nor accurate.

Euro Car Parks’ evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Euro Car Parks to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of my vehicle entering and leaving the car park at specific times (not shown within the photographic evidence), it is vital that Euro Car Parks produces evidence in response to these points.


6) Lack of signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The signs were not visible until the vehicle had entered the car park, I put Euro car Parks 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. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore as stated (point #4) a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore as the registered keeper; 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 used the car that day. 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 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, it became apparently clear that the sign is not visible until the car has already entered the carpark

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 that until they had already parked and so there was no consideration or acceptance and no contract agreed between the parties until after the driver had entered the carpark and already parked the vehicle..

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

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.

I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.

Coupon-mad

I suspect that will be enough for ECP not to bother to contest and IMHO is better than trying 'no keeper liability'.