PCN - Stockton Heath, Church Farm

Boygould_2

Thanks for your response. I will draft up my appeal POPLA letter in the next couple of days and post it on here.

Boygould_2

Here you go . . .
I found Edna's reply so comprehensive that I have only needed to make minor alterations! (Plagiarism is flattery!). I had a look through other templates but I felt that in my case these are the strongest points.
Comments gratefully received, many thanks thus far.






POPLA Appeal.

Sir/Madam,
REF: ECP PCN 123456789
POPLA 1772314006
I wish to appeal against the above Parking Charge Notice (PCN) as Euro Car Parks (ECP) have not discharged their duties correctly by non-compliance with Schedule 4 of POFA.
1. Delivery outside of the relevant period specified under sub-paragraph 9 (5)
2. Non-compliance with sub-paragraph 9 (2) (f)


1. Delivery outside of the relevant period specified under sub-paragraph 9 (5)
Sub-paragraph 9 (5) specifies the relevant period for delivery of the PCN for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended.
According to the PCN, the specified period of parking ended on Thursday 20th April 2017. The relevant period is therefore the 14 day period from Friday 21st April 2017 to Thursday 4th May 2017 inclusive.
Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
The “Letter Date” stated on the PCN is Wednesday 3rd May 2017 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Friday 5th May 2017 (i.e. outside of the relevant period).
2. Non-compliance with sub-paragraph 9 (2) (f)
ECP’s PCN advises 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 the unpaid part of the parking charge from you”.
As already demonstrated, the PCN states that the “Date Issued” is Thursday 20th April 2017 and according to the PCN, the “date given”, being the second working day after the “Date Issued” is therefore Monday 24th April 2017. ECP is claiming the right to recover unpaid parking charges from the keeper 29 days after the “date given” i.e. Tuesday 23rd May 2017
Sub-paragraph 9 (2) (f) requires that the Notice to Keeper must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given.
The PCN states that the “Letter Date” is Wednesday 3rd May 2017 and is therefore presumed as being “given” on Friday 5th May 2017. The right to recover unpaid parking charges from the keeper does not apply until 28 days beginning with the day after the “date given”. Hence the right would not apply until Saturday 3rd June 2017
Therefore the PCN claimed that ECP had the right to recover unpaid parking charges from the keeper 11 days earlier than was allowed under POFA.
I request that POPLA uphold my appeal and cancel this PCN.
Regards.

TBG

Edna_Basher

You'll need to beef it up with other key points such as inadequate signage, no landowner authority etc. Post #3 on the Newbies Sticky has more detail.

Also in this case, with a total alleged overstay of just 12 minutes, a point on grace periods should be chucked in.

Boygould_2

'Beefed up a bit'
I need to double check point 7
Happy for any comments.




Sir/Madam,
REF: ECP PCN 123456789
POPLA 1772314006
I wish to appeal against the above Parking Charge Notice (PCN) as Euro Car Parks (ECP) have not discharged their duties correctly by non-compliance with POFA & BPA codes of practice;

• Delivery outside of the relevant period specified under S4, sub-paragraph 9 (5)
• Non-compliance with POPLA S4, sub-paragraph 9 (2) (f)
• The minimum grace period was not allowed by the operator
• Insufficient signage
• Poor system implementation & maintenance
• No evidence of Landowner Authority
• Failure to Apply BPA Clause 22.8

1. Delivery outside of the relevant period specified under sub-paragraph 9 (5)
Sub-paragraph 9 (5) specifies the relevant period for delivery of the PCN for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended.
According to the PCN, the specified period of parking ended on Thursday 20th April 2017. The relevant period is therefore the 14 day period from Friday 21st April 2017 to Thursday 4th May 2017 inclusive.
Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
The “Letter Date” stated on the PCN is Wednesday 3rd May 2017 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Friday 5th May 2017 (i.e. outside of the relevant period).
2. Non-compliance with sub-paragraph 9 (2) (f)
ECP’s PCN advises 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 the unpaid part of the parking charge from you”.
As already demonstrated, the PCN states that the “Date Issued” is Thursday 20th April 2017 and according to the PCN, the “date given”, being the second working day after the “Date Issued” is therefore Monday 24th April 2017. ECP is claiming the right to recover unpaid parking charges from the keeper 29 days after the “date given” i.e. Tuesday 23rd May 2017
Sub-paragraph 9 (2) (f) requires that the Notice to Keeper must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given.
The PCN states that the “Letter Date” is Wednesday 3rd May 2017 and is therefore presumed as being “given” on Friday 5th May 2017. The right to recover unpaid parking charges from the keeper does not apply until 28 days beginning with the day after the “date given”. Hence the right would not apply until Saturday 3rd June 2017
Therefore the PCN claimed that ECP had the right to recover unpaid parking charges from the keeper 11 days earlier than was allowed under POFA.

3. The minimum grace period was not allowed by the operator:
According to the PCN, the vehicle entered the car park at 18:02 and left at 19:44 and the maximum stay for this cark park. Therefore ECP are claiming an overstay of 12 (twelve) minutes.
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.
Applying grace period of 10 minutes means that the driver of the vehicle had only 2 minutes to pass the ANPR camera, park & vacate the car, read the signage and make a decision. I think this is totally unreasonable to expect this of anyone.
4. Insufficient signage.
ECP state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN and subsequent correspondence disprove this because no signage is visible in said images. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further just inside the entrance as you are negotiating a series of bends, pedestrians etc (no footpaths) and therefore offer no information to the driver unless they are prepared to have an accident whilst reading! Looking around the car park specifically for signage (ie with prior knowledge of parking conditions), it became clear to the keeper that the signage is sporadic and difficult to read (high up). At a glance they can be misread that the first 90mins is free followed by payment. This was confirmed by others using the car park, who asked the keeper that very question during his visit (ie ‘Where are the ticket machines’).
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.
5. Poor System Implementation & Maintenance
ECP have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

It is possible (drivers of several vehicles have actually done this) for a vehicle to leave (or even enter) the car park by the service exit and therefore not be picked up by the ANPR system. Therefore a driver could enter the car park and leave without the ANPR picking it up. ECP can not prove that this did not happen in this case and therefore the enter and exit times are irrelevant.
In addition it can be proven that ANPR systems are not perfect and regularly make errors. The keeper can prove this at other car parks using exactly the technologies, where PCNs have been issued despite the vehicles having valid tickets and/or having made several entries/exits in the same day.
ECP will be required to prove that their system is reliable, accurate and maintained. In this case it can be proven that the system is none of those things and I request that you uphold my appeal based on this.

6. 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 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 Code of Practice 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
7) Failure to Apply BPA Clause 22.8
Failure of Parking Eye to follow the BPA code of practice, particularly in contravention of clause 22.8 of the British Parking Associations code of practice too which ECP must abide states that members of the BPA must “acknowledge or reply to the challenge within 14 days of receiving it”. The initial appeal was lodged online on ECP’s site on the 16/05/2017, yet ECP did not respond until XXXXXX (tbc), when they rejected the initial appeal.

Considering the above, I therefore request that POPLA uphold my appeal and cancel this PCN.
Regards.

XXXXXXX

Coupon-mad

Yep that'll win on the 'date given' issue.

ECP have closed that loophole now in new PCNs.

Boygould_2

Update: POPLA Appeal successful (detail below). Many thanks to you all for your assistance enabling such an outcome. You are stars!




Decision
Successful Unsuccessful
Assessor Name
Steve Macallan

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN), because the vehicle with registration XXXXXXX, “parked longer than the maximum period allowed” at Church Farm – Warrington on 20 April 2017.


Assessor summary of your case
The appellant believes the operator has failed to adhere to the provisions of the Protection of Freedoms Act (POFA) 2012. He believes the operator should have applied a grace period. He says the signage is not sufficient. Undocumented conversations He is questioning the accuracy of the operator’s Automatic Number Plate Recognition (ANPR) system. He is also questioning the authority of the operator to issue and pursue PCNs for this site. Witness statements He has raised concerns regarding the way the operator dealt with his initial appeal.


Assessor supporting rational for decision
For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (POFA) 2012 must be adhered to. After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified. The operator is therefore pursuing the registered keeper of the vehicle in this instance. The operator has provided a copy of the Notice to Keeper (NTK) sent. As the driver of the vehicle has not been identified, the NTK will need to comply with section 9 of POFA 2012. Section 9 sub-paragraph (5) states that the timescale by which the notice must be given “is the period of 14 days beginning with the day after that on which the specified period of parking ended”. As the alleged contravention was on 20 April 2017, the 14 day period therefore ended on 4 May. The given date is the second working day after the date issued. The NTK was issued on 3 May and so the given date is 5 May. From the evidence provided, I am satisfied that the operator failed to adhere to the timescales of POFA 2012, and therefore cannot transfer liability of the parking charge from the driver to the keeper. As such, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal. As the appeal has been allowed, there is no need to consider any other grounds of appeal. For clarity, any customer service issues regarding the way the operator dealt with the appellant’s initial appeal are outside of POPLA’s remit. We are an impartial appeal service

Coupon-mad

Well done!

Could he not make his mind up?!

Decision
Successful Unsuccessful

Please add that decision (and a BROKEN - hxxp instead of http - link back to this thread) stating it was a Euro Car parks case, into the sticky thread 'POPLA Decisions' for posterity and to help others.

It is good that he picked out a one day late NTK as not compliant (quite right). We've seen the BPA and DVLA bluster and try to say that such a small delay is OK/a grey area (clearly not, for keeper liability).

Edna_Basher

Yes, well done.

It was a good thing that you were allocated one of POPLA's more competent assessors.

Boygould_2

Thanks. Just noticed the 'Successful/Unsuccessful' bit . . .something in copy/paste as it does not appear on the POPLA page!


I will copy a link into the POPLA Decisions thread as requested.


Thanks again.