Please could admin OK my POPLA appeal letter?

MUMMYOF4SMALLS

Thanks Coupon-mad.
I've found the info below. If I make it the first point, and make reference to the fact the PCN was issued the same day as the parking occurred, will that be sufficient? I assume I need to send a copy of my initial PCN to as evidence?

As per POPLA's decision below earlier this year, I request the following be taken into consideration and my appeal be allowed for the same reasons.

Assessor Name: Alexandra Wilcox
Assessor summary of operator case
The driver remained on site for longer than permitted.

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.

MUMMYOF4SMALLS

Just to confirm my details are correct to allow this appeal on the grounds you mentioned, before submitting to POPLA...
Date Parking occurred: 29/06/17
Date PCN Issued: 29/06/17
Letter Date: 10/07/17
Also, should I include these details below of another successful appeal based on the same grounds, as this has reference numbers etc?

Verification Code
2411297345

POPLA assessment and decision
27/06/2017

Decision Successful
Assessor Name Saf*** ******
Assessor supporting rational for decision
When a parking operator is pursuing a keeper as liable for a charge, it must satisfy the requirements of the Protection of Freedoms Act 2012 (PoFA 2012). Within PoFA 2012 it states at Paragraph 9(2)(f) 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 – (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;” As such, transfer of liability occurs after ‘28 days beginning with the day after the date the notice is given’. Within PoFA 2012, it further 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.” Therefore, it is clear that the date the Notice to Keeper was posted is the key date in determining when the 28-day period begins. Having considered the Notice to Keeper sent in this instance, the wording used is as follows: “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. This notice is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the Act.” However, I note that the “Date Issued” referred to above is not the date the Notice to Keeper was posted and is instead, the date of the parking event. As such, it is clear that while the operator has attempted to comply with the requirements of Schedule 4 of PoFA 2012, its reference to the “Date Issued” is incorrect and the impact of this is that the keeper would not be given the correct length of time to provide details of the driver. On this basis, I can only conclude that the Notice to Keeper would fail to meet the strict requirements of PoFA 2012. Accordingly, I must allow this appeal.

Many thanks.

Coupon-mad

Yes you could include both of those, make it long.

If I make it the first point, and make reference to the fact the PCN was issued the same day as the parking occurred, will that be sufficient?

not quite, because it wasn't actually issued then. You would be saying look here's a scan of the PCN received and the 'date issued' is incorrectly stated which misleads a keeper regarding liability deadlines, as per the two decisions below:

Then you would be including all the usual other POPLA appeal points people use against ECP, probably another 4 points. Very long, with embedded images to illustrate it (not links if they are images). Like a several-page story.

Search the forum for 'ECP POPLA' and copy the format that's won recently several times.

MUMMYOF4SMALLS

POPLA APPEAL REF XXXXXXXX
04/09/17

EURO CAR PARKS PCN no.XXXXXXX

A notice to keeper was issued on 29/06/17 and received by the registered keeper of the car on 12/07/17 for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’.

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

1. THE PCN ISSUED IS NOT COMPLIANT WITH PoFA 2012
2. SIGNAGE
3. BPA CODE OF PRACTICE, NON COMPLIANCE TO GUIDELINES
4. 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.
5. LAND OWNER AUTHORITY
6. OBSERVATION POINTS
7. GRACE PERIOD
8. NO EVIDENCE OF PERIOD PARKED

1. THE PCN ISSUED IS NOT COMPLIANT WITH PoFA 2012
Attached in my evidence is a scan of the PCN received and the 'date issued' is incorrectly stated which misleads a keeper regarding liability deadlines, as per the two decisions below:
ECP has ‘issued’ the the PCN the same date the parking occurred and not the date the NTK was sent out. This contravenes PoFA 12 and as POPLA assessor Alexandra Wilcox found in the case below;
“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.”
And similarly, assessor Saf*** found the same issue applied in a recent case below
POPLA assessment and decision
27/06/2017

Decision Successful
Assessor Name Saf*** ******
Assessor supporting rational for decision
“When a parking operator is pursuing a keeper as liable for a charge, it must satisfy the requirements of the Protection of Freedoms Act 2012 (PoFA 2012). Within PoFA 2012 it states at Paragraph 9(2)(f) 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 – (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;” As such, transfer of liability occurs after ‘28 days beginning with the day after the date the notice is given’. Within PoFA 2012, it further 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.” Therefore, it is clear that the date the Notice to Keeper was posted is the key date in determining when the 28-day period begins. Having considered the Notice to Keeper sent in this instance, the wording used is as follows: “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. This notice is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the Act.” However, I note that the “Date Issued” referred to above is not the date the Notice to Keeper was posted and is instead, the date of the parking event. As such, it is clear that while the operator has attempted to comply with the requirements of Schedule 4 of PoFA 2012, its reference to the “Date Issued” is incorrect and the impact of this is that the keeper would not be given the correct length of time to provide details of the driver. On this basis, I can only conclude that the Notice to Keeper would fail to meet the strict requirements of PoFA 2012. Accordingly, I must allow this appeal.”

2. SIGNAGE

The signs in this car park are not prominent, clear or legible from the entrance to the petrol station (especially at night) from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
These signs are unremarkable, concealed from the road by much more prominent flag/banner adverts which are 3 times the height of a car and would certainly completely obscure any sign, so no driver would look twice at a yellow sign behind some flags in a BP petrol garage.
There was no contract or 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:
URL
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:

URL

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.

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:

URL

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

''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:

URL

''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:

URL

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.

3. BPA CODE OF PRACTICE - NON-COMPLIANCE TO GUIDELINES

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. They DO NOT clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite ECP to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.

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.

CONTINUED.....

MUMMYOF4SMALLS

CONTINUED....

5. OBSERVATION POINTS

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

6. GRACE PERIOD

As per section 13 of the BPA Code of Practice: '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.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged contract.

The total time spent by the car past the point of ANPR control is NOT the same as the period parked. It is also true that waiting in a queue for a petrol pump to become free, filling up your vehicle, using the toilet, browsing the shop and paying for goods is time included and recorded on the ANPR and not actual time a vehicle is parked in the separate car park in the spaces provided.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”

7. NO EVIDENCE OF PERIOD PARKED.

The Notice to keeper clearly states the vehicle was parked during the relevant period. PoFA2012 Sched 4 Para 9 refers at numerous times to the period of parking. By virtue of the nature of an ANPR system recording only entry and exit times, ECP are not able to definitively state the period of parking. Contrary to the mandatory provisions of the BPA code of practice, there is no record to show that the vehicle was parked longer than the time allowed PLUS the mandatory grace periods. These are a minimum of 10 minutes to leave the car park and a similar period to cover the period after the vehicle parks, finds signage, reads the signage and decides whether to accept or reject the terms offered within. The alleged overstay does not meet the binding code of practice. There is no evidence that the vehicle was ‘parked’ for the period stated.

At the bottom of the 'internal appeal' rejection letter, ECP included photos of signs of a different car park (Eastgate Louth), where they showed a parking ticket meter and and a pay by phone sign. Neither of these options as far as the driver was aware, is available at the BP Garage they were at, because it was a petrol station and not a car park.

I respectfully request that this parking charge notice appeal be allowed on the points raised above and await your decision.

Coupon-mad

1. THE PCN ISSUED IS NOT COMPLIANT WITH PoFA 2012
Attached in my evidence is a scan of the PCN received and the 'date issued' is incorrectly stated which misleads a keeper regarding liability deadlines,

Make sure you embed a scan of that wording here, as a picture.

And same here, a scan will be needed:

At the bottom of the 'internal appeal' rejection letter, ECP included photos of signs of a different car park (Eastgate Louth), where they showed a parking ticket meter and and a pay by phone sign. Neither of these options as far as the driver was aware, is available at the BP Garage they were at, because it was a petrol station and not a car park.

Looks good to go, as long as Grace Periods makes sense for your case (very short overstay)?

MUMMYOF4SMALLS

Hi, so here is the response from ECP. I have 7 days to respond. Along with this 'evidence' they included lots of daytime photos of the area with all the signs they state are there, and photos of the whole car on entry and exit. There is also a 'signed' agreement with BP Oils by a Mark James/Jones (can't quite tell which) and Barry Tucker (or the T may be an F!) from ECP dated on 06/03/17.
Please advise my next steps.
Many thanks
Mr XXXXXX then appealed the PCN and refused to provide the name and a serviceable
address of the driver on the day in question and therefore the liability remains with Mr XXXXXX as the registered keeper of the vehicle.
The parking charge notice (section 2) clearly advises the registered keeper/ hirer to provide
the name and serviceable address of the driver within 28 days of the date on the parking
charge notice.
Our PCN (Parking Charge Notice) is the first communication with the registered keeper – this is
referred to as the Notice to Keeper or Notice to Owner
The PCN (NTK/NTO) has been checked by both the BPA and the IPC and we have confirmation
that our PCN (NTK/NTO) and has been approved as compliant with POFA
The PCN (NTK/NTO) has been checked by Gladstone Solicitors who specialise in assisting
private car park operators – legal advice and pre legal advice with regards signage and
adhering to POFA and both code of practice
Please be advised once the registered keeper has been sent the PCN (NTK/NTO) if there is no
response, payment, appeal, serviceable address of the driver – ECP process a Notice To Keeper –
this is a “reminder letter” and sent in reference to the PCN (NTK/NTO) that has not been responded
to.
If we are in receipt of a serviceable address of the driver – the PCN (NTK/NTO) is re-issued
If the registered keeper is in receipt of the PCN (NTK/NTO) and has passed to the driver and the
driver appeals – we will respond to the appeal strictly following the code and ensure any/all
communication is sent to the driver (we would not at this stage re-issue the PCN)
We have been advised that the above is standard practice for all private car park operators in regards
to PCN (NTK/NTO) issued on Automatic Number Plate Recognition car parks
...

nosferatu1001

So they just have a blanket "it complies" rather than rebutting your specific points?

Coupon-mad

Does one of the letters (might be the second one, called the 'Notice to Keeper') have a 'date of issue' top right?

If so, point out to POPLA this phrase misleads a consumer about the date by which ECP are alleging keeper liability applies.

Also look at things like the landowner authority, date, expiry date (none?) signature and names (covered up)? All comments for you to send to POPLA now.

MUMMYOF4SMALLS

:beer:Thanks to all for your help on this matter 🙏👍
POPLA decision - SUCCESSFUL
ECP GATWICK
4/10/17
Assessor supporting rational for decision
The appellant has raised numerous grounds of appeal, but my assessment will focus solely on whether the PCN issued by the operator is compliant with PoFA. When a parking operator is pursuing a keeper as liable for a charge, it must satisfy the requirements of PoFA. Within PoFA 2012 it states at Paragraph 9(2)(f) 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 – (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;” As such, transfer of liability occurs after ‘28 days beginning with the day after the date the notice is given’. Within PoFA 2012, it further 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.” Therefore, it is clear that the date the Notice to Keeper was posted is the key date in determining when the 28-day period begins. Having considered the Notice to Keeper sent in this instance, the wording used is as follows: “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. This notice is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the Act.” However, I note that the “Date Issued” referred to above is not the date the Notice to Keeper was posted and is instead, the date of the parking event. As such, it is clear that while the operator has attempted to comply with the requirements of Schedule 4 of PoFA 2012, its reference to the “Date Issued” is incorrect and the impact of this is that the keeper would not be given the correct length of time to provide details of the driver. On this basis, I can only conclude that the Notice to Keeper would fail to meet the strict requirements of PoFA 2012.” Upon consideration of this evidence, I cannot confirm that the PCN has been issued correctly. Accordingly I must allow this appeal. I note that the appellant has raised further grounds for appeal in this case, however as I have allowed the appeal for this reason, I have not considered them.