Yet another is my case different thread

Casey1709

Hi All,

I've been reading the sticky and believe the following is the current best advice to reply to a recently received Parking Charge Notice from Eu*o Car Parks and am happy to submit it via their electronic portal.

*****************************
Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

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

The Parking Charge Notice arrived out of the blue, it shows only the numberplate, allegedly on entry & exit. So they have already obtained the Keeper's details in order to send their letter.

However the letter doesn't individually identify the driver, i.e. its addressed to Mr Casey, not Mr K Casey or Mr C Casey both of whom live at the address & only one of whom is the keeper.

Would it be worth having some fun with them by replying as Mr Casey (so deleting the usual top line of admitting to being keeper of the car) and saying I am not responsible for the event they are claiming, I am not the keeper of the vehicle and in any event their letter does not show any proof of parking or is that better kept for later in the process?

Umkomaas

Just kill it off using standard procedures. Trying to 'have some fun' with them is not worth wasting your time over, they won't understand it or just ignore it and plough on regardless in their usual way, trying to pressurise you into paying them without paying any regard to what you're saying.

Get rid of it via a landlord cancellation or get POPLA to do likewise.

Coupon-mad

Casey1709 wrote: »

Would it be worth having some fun with them by replying as Mr Casey (so deleting the usual top line of admitting to being keeper of the car) and saying I am not responsible for the event they are claiming, I am not the keeper of the vehicle and in any event their letter does not show any proof of parking or is that better kept for later in the process?

No, it is better to be the keeper or POPLA might not hear the case (only drivers and keepers/hirers can appeal).

Casey1709

Hi again. As expected Euro Car Parks declined my appeal and gave me a POPLA code. Boy it takes a while to read & absorb the sticky but hopefully I've drafted something suitable. All feedback gratefully received.

I see Euro Car parks have muddled the issue and given dates like others have experienced so hopefully this is a quick win.

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:

Euro Car Parks (ECP) Notice to Keeper (NTK) fails to identify the keeper correctly and is thus invalid under POFA 2012, Schedule 4 - No Keeper Liability.
Euro Car Parks NTK fails to properly identify the location of the alleged parking event and is thus invalid under POFA 2012, Schedule 4 - No Keeper Liability
Euro Car Parks NTK ’issued/given' dates conflict and do not comply with POFA 2012 Schedule 4 - No Keeper Liability.
No evidence of Landowner Authority
BPA Code of Practice - non-compliance - photo evidence.
The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Indeed the photographs supplied by ECP of the vehicle in question contains no signs.
Amount demanded is a penalty and Euro Car Parks have failed to mitigate their loss.
Photo evidence is open to doctoring
No Driver Liability.

1) Euro Car Parks (ECP) Notice to Keeper (NTK) fails to identify the keeper correctly and is thus invalid under POFA 2012, Schedule 4 - No Keeper Liability.

Euro Car Park’s NTK is not addressed to the keeper of the vehicle as the keeper’s forename is missing. The NTK could be opened and discarded by any female member of the household as not applying to them.
2) Euro Car Parks NTK fails to properly identify the location of the alleged parking event and is thus invalid under POFA 2012, Schedule 4 - No Keeper Liability

The location given on Euro Car Park’s NTK is “Sainsburys - Bath” - i.e. without a street address or postcode. According to Sainsburys Store Finder website there are five Sainsburys within Bath, Somerset as follows:

Bath Southgate Local 2-4 Dorchester Street, Bath
Bath Local 43 Monmouth Street, Bath
Bath Green Park Road, Bath
Bath Oldfield Park Local 54-56 Moorland Road, Bath
Bath Odd Down Frome Road, Bath


3) Euro Car Parks NTK ’issued/given' dates conflict and do not comply with POFA 2012 Schedule 4 - No Keeper Liability.

In May 2017, Euro Car Parks NTKs were found by POPLA to be non-compliant and this one is similarly compromised by the dates. POPLA Assessor Kirsty xxxxx, delivered a ''Decision Successful/Rationale'' about the same style of Euro Car Parks NTK (POPLA Verification Code 2410967437):

''The operator has provided evidence of the Notice to Keeper (NTK) that has been issued. Paragraph 9 of schedule 4 of PoFA states: “(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (2) The notice must – (f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) the amount of the unpaid parking charges specified under the paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, The creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; (i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).” Upon reviewing the NTK provided by the parking operator, I can see that the date issued is 12 March 2017. The NTK states “You are advised that if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and the current address of the driver, we have the right to recover any unpaid part of the parking charge from you”.

The date the letter was given was 21 March 2017, however it states the date issued is 12 March 2017. As such, the operator has not complied with PoFA 2012 and I conclude that the operator has issued the PCN incorrectly. While I appreciate that the appellant has raised further grounds of appeal, as I have already allowed the appeal on this ground there is no need for me to further consider them. Accordingly, I must allow this appeal.''

In my case the dates are obviously different from those stated in that decision, as they will be in most cases POPLA reviews, but an operator must not mislead a motorist about the legal term 'date given' as far as a NTK is concerned and the ''date given'' cannot be materially different from the ''date issued'' by more than a couple of days in the post.


The Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park. These times do not equate to any single evidenced period of parking. There is no evidence of a single period of parking and this cannot reasonably be assumed on the balance of probabilities, from two photos of a moving car on a bridge. I.E. neither picture shows a stationary or parked vehicle within any car parking area.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;

“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

A more likely explanation is that the driver(s) may have driven in and out on two or more separate occasions. There is ample evidence in the public domain that ANPR timings can mask other ordinary circumstances, such as two visits ('double dip', a well known phenomenon).

Here are just three examples of BPA member ANPR evidence failures, including a court loss and an ICO investigation:
parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html
parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html
parking-prankster.blogspot.co.uk/2015/10/parkingeye-subject-to-data-protection.html

This 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in the following article:

britishparking.co.uk/Other-Advice#4

As with all new technology, there are issues associated with its use:
''Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

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...'

POFA 2012, paragraph 9(3) states;
“The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)”

If the ANPR system has picked up two separate occasions then it would fail on the above ruling as two separate PCNs should be issued, assuming the vehicle in question had breached the contract terms, and not just the one that was sent to the Keepers address. I put the operator to strict proof that there was only one period of parking, because this is a mandatory requirement for keeper liability also stated clearly in Schedule 4.
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:

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

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (b) has given a notice to keeper in accordance with paragraph 9.''

The operator has failed to meet the second condition for keeper liability due to the 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.''

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

2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.
Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Casey1709

PART 2


5) 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 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 of 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.


6) The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Euro Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.

It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.


7) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Indeed the photographs supplied by ECP of the vehicle in question contains no signs.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''
...and the same chart is reproduced here:

ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

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

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
8) Amount demanded is a penalty

Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

I am given to understand that some but not all signs warn of a £70 charge but no discount. These signs claim the car park is patrolled, which, if true, their operative should have alert the driver to any impending penalty or charge.


9) Photo Evidence Open to Being Doctored

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge ECP to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge ECP that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).


10) No Driver Liability
The operator has not shown that the individual who it is pursuing is in fact the driver or one of the drivers who may have been potentially liable for the charge (ref POPLA case Carly Law 6061796103).
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.''

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.

Guys_Dad

C-M will love this appeal :rotfl::rotfl::rotfl::rotfl:

Coupon-mad

I see Euro Car parks have muddled the issue and given dates like others have experienced so hopefully this is a quick win.

Yep, that will win. Make sure the dates are right in your version (not 12/21 March, surely?)

Guys_Dad wrote: »

C-M will love this appeal :rotfl::rotfl::rotfl::rotfl:

Is it something I said, Guy's Dad? Somewhat critical today, it seems to me.

But re very wordy appeals, it must be a girl thing, LoadsofChildren123 writes like me (or maybe, I write like she does).

Nowt wrong with 100 words instead of ten! And this POPLA style works, has done for years.

Casey1709

Coupon-mad wrote: »

Yep, that will win. Make sure the dates are right in your version (not 12/21 March, surely?)

Yes, you are correct, I will insert correct dates from the NTK.

Is it something I said, Guy's Dad? Somewhat critical today, it seems to me.

But re very wordy appeals, it must be a girl thing, LoadsofChildren123 writes like me (or maybe, I write like she does).

Nowt wrong with 100 words instead of ten! And this POPLA style works, has done for years.

Thank you.

Guys_Dad

Coupon-mad wrote: »

Is it something I said, Guy's Dad? Somewhat critical today, it seems to me.

Not meaning to be critical at all. But you know me - I like short and targetted appeals, but as you say, your preference for the longer appeal has good results. :beer:

Casey1709

A big THANK YOU to Coupon Mad et all for the wonderful support. POPLA result in - Appeal allowed. :-)

Text of result:

After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle, on the date of the alleged parking contravention. The operator is therefore pursuing the appellant as the registered keeper of the vehicle. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. PoFA 2012 states: “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) The amount of the unpaid parking charges specified under paragraph (d) has not been paid in full; and (ii) The creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;” Therefore, transfer of liability occurs ‘28 days beginning with the day after the date the notice is given’. However the PCN that has been received states “…29 days from the date given (which is presumed to be the second working day after the Date Issued) …”. This is incorrect because the field titled “Date Issued” is actually the date the PCN was issued not the date the notice to keeper was sent out. As such I can confirm that the PCN issued is not compliant with PoFA 2012 and I must allow the appeal. I note the appellant has raised further grounds of appeal; however I do not need to look at these as I have allowed the appeal.