POPLA Appeal- Euro Car Parks

trinity_enigma

Hi there. So I have done the initial appeal, been rejected and have put together a POPLA appeal which I will paste over the next few posts for a once over if I may? I do have a few questions that I will put in this post so they don't get missed though so thanks in advance for any answers.

What do you recommend I choose as the option for the appeal? Is it other? I have not identified the driver and am a bit wary that some of the options suggest I was the driver.

Secondly, I am a bit confused about using the POFA and the date of issue/date of event. The PCN gives those as separate dates (10/6 vs 19/6), however my appeal letter says the date of issue was 10/6 which was actually the date of event. Can I use this in any way as it isn't the PCN?

Lastly I think I saw in the POPLA results that one of the decisions was made based purely on the letter advising the POFA infomation being wrong in the letter as it states 29 days and not 28 days. Would you advise adding that in?

I am really sorry for what are probably stupid questions but my brain has been fried by all the jargon and legalese. Again, thank you so much for the help.

trinity_enigma

I am the registered keeper and I am appealing this parking charge from Euro Car Parks XXX Car Park because:
1. No period of grace given for the driver to read the signs within the car park and pay for ticket and no grace period was given for the group to safely exit the car park afterwards.
2. The Notice to Keeper did not 'specify the period of parking' to which it related.
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. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

1. No period of grace given for the driver to read the signs within the car park and pay for ticket and no grace period was given for the group to safely exit the car park afterwards.
The BPA Code of Practice (13.2) states that parking operators "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." In addition, the BPA Code of Practice (13.4) states that the parking operators “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.”

The driver of the car at the time was supposedly captured by ANPR cameras driving in to the car park at 10/06/17 11:32 and driving out at 14:55 on the same date (This is discussed further in point 2). Total time from driving into the car park and exiting was 3 Hours 22 mins. The driver paid for 3 hours parking as seen on the receipt in ‘Doc. 1’ (Please note there was a keyboard error on purchase of the ticket that was explained and accepted by Euro Car Parks in the initial appeal stage). The driver was unaware that parking time began from entry to the car park. The driver returned to the car park as their parking time expired and studied the signs to find out whether they were allowed to purchase another ticket to extend their parking time or not. Even after reading the signs they were unsure and so deciding it would be better to be safe than sorry, they secured their two children into the car and left.
It is very clear from the evidence that Euro Car Parks have failed to uphold the minimum grace periods as set out in the BPA Code of Practice as the total time in the carpark exceeded the paid period in total by 22 minutes.

2. The Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided photographs of a number plate twice. Typed beneath the photographs are 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, and unless the car park operator are able to provide proof of calibration, bears no relation to the ticket purchased from the pay and display machine.
[FONT=&quot]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

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[FONT=&quot][FONT=&quot]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

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trinity_enigma

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. 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

trinity_enigma

Hi, I don't know if this is the done thing or not but I'm just cheekily bumping this post up the board. I appreciate everyone who helps is volunteering their expertise so I don't want to appear rude/pushy/demanding but equally I don't expect you guys and gals to sieve through pages of posts to see who is still looking for help.

A million thank yous

trinity_enigma

Hi, if anyone is around, this is a last minute request for a read through on this. If not, never mind but I will be submitting tonight and will update the post with the outcome for future reference. Thanks

Fruitcake

Where is the Inadequate Signage appeal point? This template appeal point is in post 3 of the NEWBIES and is longer than your whole appeal put together. You should always, always include a signage appeal point.

You select "other" and attach the appeal as a pdf, putting a comment to that effect in the appeal test box.

What happened when you complained to the landowner?

Please clarify the dates.
Date of alleged event. Date NTK received (not date sent.)

Does the PCN/NTK mention POFA?

What did you put in the original appeal?

Don't send anything yet until the regulars have had a look at it.

trinity_enigma

Thanks for the response.

I hadn't included the signage section as I had found it so complicated to understand that I wasn't really sure whether it actually counted. I will add it now if you think I should.

I have not complained to the land owner as I can't find out who it is.

Date of event: 10 June
Date PCN received: 21 June

POFA is mentioned. Paraphrasing it says You are notifiedunder POFA that the driver has to pay..... And You are advised that if after 29 days from the date given, it hasn't been paid, we will recover the payment from you.

The original appeal was the standard letter as advised in the newbies thread plus a sentence explaining a ticket had been purchased but a letter had been put in wrong and included a photo of the ticket.

I only have a couple more days to lodge the appeal which is why I was planning to submit tonight.

trinity_enigma

Ok I have added the signage into the appeal. Can someone clarify should I submit a photo of the actual signage with the appeal or should I see what the company respond with?

Coupon-mad

If it helps then yes, but embed it into the word document. The appeal should look illustrated, not links or separate uploads which makes more work for the Assessor.

You can't wait and see and add new stuff later - POPLA do not allow later evidence or points.

You are the first person in ages who tried not the use the signage point, and the only person who has ever said it's complicated to understand. It's hardly rocket science wording, it just says with proof and evidence that 'the signs are illegible, and here's why'. It is a must for any POPLA appeal.

If the 'date issued' on the PCN pre-dates the 'date posted' then you need that in the appeal, at the top, because it's a winning point.