Euro Car Parks - Morisons Crawley. POPLA Appeal

Red_Firecracker

Hi All,

I received a Notice to Keeper from Euro Car Parks dated 22/12/2016 with a Date of Issue of 22/11/2016 for overstay at the Morrisons Sussex House car park in Crawley. (2 hours free)

This was the first correspondence I received and it states:

"The driver has failed to pay the notice amount within the time specified. Therefore, as per the displayed terms and conditions at the site, the amount due has now increased (the discounted charge does not apply)."

There were no ANPR images included with the NTK.

I appealed using the blue template and I now have my rejection letter and POPLA code. I still have no ANPR images of my vehicle but do have a picture dated 21/05/2015 of a parking notice (which does not mention 'Morrisons' or 'Crawley') with some nice flash glare on it.

I'm just putting together the POPLA appeal text, referring to several threads here and my question is about the lack of ANPR images.

This is what I have so far;

---

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 charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye v Beavis
2) 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
3) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.
4) No evidence of Landowner Authority

1) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye v Beavis

It appears that a wrong registration number may have been recorded by inadvertent error of the driver. No evidence has been produced either way by this operator and it is not disputed by any party that there was certainly no attempt to avoid payment, which according to the complex signage, we contend was paid in full. There can be no aim to punish a driver; such a charge would be unconscionable and unrecoverable.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with an authorised driver who bought a ticket for parking which was purchased and displayed in good faith. This situation can be very easily distinguished from the case of ParkingEye Ltd v Beavis, which made it clear that the findings did not relate to 'pay by hour' type car parks.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

''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... 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.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:

''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of such a minor term of a VRN (despite the operator knowing from the first appeal that that the tariff was undoubtedly paid) is unjustified and unfair, if the remedy is out of all proportion with the 'breach'. The Beavis case does NOT apply to this argument because there is no legitimate interest in fining a paying visitor.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage had a mere instruction to enter the FULL VRN but failed to make any obligation and/or risk of penalty prominent for getting that detail wrong.

The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

2) 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.''

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

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible.

The BPA Code of Practice states that- “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

There were no conspicuous signs throughout the site, and the signage contains texts so small as to be unintelligible, furthermore I put Euro car Parks to strict proof otherwise, As well as a site map they must show photographs of the signs as the driver would seem them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car, the entrance to the car park, or the layout of 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 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.''

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

The sign is also incapable of creating any 'relevant obligation' or 'relevant contract' being the basic requirements leading to the possibility of 'keeper liability' under Schedule 4 of the POFA.

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.

4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation 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 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.

---

The two things I am have trouble with are;

• BPA Code of Practice - further non-compliance (photo evidence).
• The ANPR system is neither reliable nor accurate.

Both due to the lack of ANPR evidence. Do I forego using those two angles?

Any advice would be most gratefully received.

Kelvin

Redx

you raise each and every legal argument you can at this stage , putting them to strict proof TO POPLA about anpr pictures , anpr data , signage , contracts , NTK flaws , BPA CoP errors , POFA2012 errors , driver not identified , and any other issues you can find or complain about , like not the same as the BEAVIS case for example

PE will send popla an evidence pack if they continue, which you will (or should) also receive , that is when you study the evidence and issue a rebuttal to popla of the evidence pack within a week of the decision date

if it does not go into this initial appeal, you cannot add it in later, so its throw everything in the kitchen sink time

it is their job to prove their case, not yours

Red_Firecracker

Thanks Redx. I'll post an updated set of text here before submitting once I've edited for accuracy.

Coupon-mad

Yes the longer the POPLA appeal the better, to encourage ECP to give up!

Red_Firecracker

Thanks for your replies.

I'd be grateful if you could pass your eyes over this updated appeal text;

---

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) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates.
2) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye v Beavis
3) 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
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
6) The ANPR system is neither reliable nor accurate
7) BPA Code of Practice - further non-compliance - photo evidence.


1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Euro Car Parks have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or


sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’



The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived some 4 weeks after the alleged event. The NTK issued by Euro Car Parks states the ‘date of contravention’ as 22nd of November 2016, and ‘date of notice’ as 22nd of December 2016, hence the NTK can not be considered to be deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).

This means that Euro Car Parks have failed to act in time for keeper liability to apply.

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was.


2) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye v Beavis

It appears that a wrong registration number may have been recorded by inadvertent error of the driver. No evidence has been produced either way by this operator and it is not disputed by any party that there was certainly no attempt to avoid payment, which according to the complex signage, we contend was paid in full. There can be no aim to punish a driver; such a charge would be unconscionable and unrecoverable.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with an authorised driver who bought a ticket for parking which was purchased and displayed in good faith. This situation can be very easily distinguished from the case of ParkingEye Ltd v Beavis, which made it clear that the findings did not relate to 'pay by hour' type car parks.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

''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... 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.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:

''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of such a minor term of a VRN (despite the operator knowing from the first appeal that that the tariff was undoubtedly paid) is unjustified and unfair, if the remedy is out of all proportion with the 'breach'. The Beavis case does NOT apply to this argument because there is no legitimate interest in fining a paying visitor.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage had a mere instruction to enter the FULL VRN but failed to make any obligation and/or risk of penalty prominent for getting that detail wrong.

The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

3) 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.''

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

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible.

The BPA Code of Practice states that- “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

There were no conspicuous signs throughout the site, and the signage contains texts so small as to be unintelligible, furthermore I put Euro car Parks to strict proof otherwise, As well as a site map they must show photographs of the signs as the driver would seem them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car, the entrance to the car park, or the layout of 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 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.''

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

The sign is also incapable of creating any 'relevant obligation' or 'relevant contract' being the basic requirements leading to the possibility of 'keeper liability' under Schedule 4 of the POFA.

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.

5) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation 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


6) The ANPR system is neither reliable nor accurate

Euro Car Parks have provided no photographic evidence of any sort, not least of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. To capture a vehicle entering the car park and actually crossing the boundary into the land in question, it would appear that the only conceivable location for a camera would be directly across the road from the entrance therefore outside the car park and taken from public land.

In any case 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 actual action and period of parking commences, when the vehicle is stationary, and when the clock should start from. The exit photo image of the rear number plate cannot be evidence of actual 'parking time' at all, and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event.

Additionally you cannot discount that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website;

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 the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of the vehicle number plate allegedly entering and leaving the car park at specific times (not shown within the photographic images), 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 this vehicle being in that car park, a local camera, one of which was located outside the car park, took the image but a remote server added the time stamps. 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 photo images, I put Euro Car Parks to strict proof to the contrary.

7) 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 unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The parking charge notice in question does not contain any photographs, I have not been sent any photographs as evidence.

As no images have been supplied, 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.



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.

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All input welcome. Is there a better order to lay out the 7 points?

Many thanks

Kelvin

Guys_Dad

It looks like they are claiming a windscreen ticket.

I would put as appeal point 1 that they have failed to provide any evidence of the vehicle's presence on the day in contravention of the BPA code of practice.

Red_Firecracker

Thanks for your reply.

Their refusal of appeal letter states it is an ANPR controlled car park, so no windscreen tickets. I'll move point 7 up though.

Many thanks

Kelvin

Fruitcake

You have referred to a rear number plate photo, and also that they are relying in two photos, but also say that there were no photos at all.

Which is it?

Red_Firecracker

Thanks Fruitcake, I copied in an unedited 'Section 6'. The correctlt edited version below.

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6) The ANPR system is neither reliable nor accurate

Euro Car Parks have provided no photographic evidence of any sort, not least of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. To capture a vehicle entering the car park and actually crossing the boundary into the land in question, it would appear that the only conceivable location for a camera would be directly across the road from the entrance therefore outside the car park and taken from public land.

It cannot be discounted that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website;

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 the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. It is vital that Euro Car Parks produces evidence in response to these points as well as providing photographic evidence of the vehicle in question entering & exiting the car park in question.

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 this vehicle being in that car park, a local camera, one of which was located outside the car park, took an image but a remote server added time stamps. 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. 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 any 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. I put Euro Car Parks to strict proof to the contrary.

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