Sainsbury's Stanmore - Win at POPLA

dadsma

The signs and heights vary and the key terms are mainly illegible. You haven't posted any pictures. I suggest you start your own topic called 'Euro Car Parks signs' and include your pictures in that. I am sure others will contribute theirs from different ECP sites.

dadsma

dadsma wrote: »

Meanwhile, the vehicle's hirer has appealed to POPLA. The first appeal point and ECP's response follows. POPLA have invited the hirer to comment. I would be very grateful for the forum experts opinions to pass on to the hirer.

POPLA Appeal Point 1.

1. Euro Car Parks failed to meet the strict requirements of Schedule 4 of POFA - A compliant Notice to Keeper or Hirer was never served on me - No keeper or hirer liability can apply

1a. Failure to deliver a compliant Notice to Hirer

In order to rely upon POFA to be able to hold me liable in my capacity as the vehicle’s hirer, Euro Car Parks Ltd. had to deliver a Notice to Hirer that fully met all of POFA’s strict requirements.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA; the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge are set out in Paragraph 14.

Paragraph 14(2)(a) of Schedule 4 of POFA specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)).

Paragraph 14(5) specifies that the Notice to Hirer must:
(a) inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the notice to keeper) may be recovered from the hirer;
(b) refer the hirer to the information contained in the notice to keeper;
(c) warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid;
(d) inform the hirer of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(e) identify the creditor and specify how and to whom payment may be made; and
(f) specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

Despite being provided with my details as the vehicle’s hirer, Euro Car Parks Ltd failed to deliver a Notice to Hirer (compliant or otherwise) to me within the relevant period specified within Schedule 4 of POFA.

Given its failure to comply with the requirements of Paragraphs 13 and 14 of Schedule 4 of POFA as detailed above,Euro Car Parks Ltd’s claim against me (in my capacity as the vehicle’s hirer) must be determined as being invalid.

1b. Failure to deliver a compliant Notice to Keeper

Schedule 4 of POFA defines “keeper” as meaning the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper. In this case the contrary has been proved; in addition to being the vehicle’s hirer, I am also its keeper.

Given that it has been proven that Lex was not the vehicle’s keeper (as defined under Schedule 4 of POFA), there are no circumstances where Lex may be liable for this Parking Charge.

Furthermore, given that Euro Car Parks Ltd did not deliver a Notice to Keeper to me within the relevant period specified under Schedule 4 of POFA, Euro Car Parks Ltd has no valid claim against me (in my capacity as the vehicle's keeper).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Here is Euro Car Parks evidence to POPLA who have invited the appellant to comment. I would welcome the forum’s expert opinions as I am sure it will be interesting and helpful;


"Registered Keeper Details and Liability Trail

Parking Charge Notice (PCN) xxxxxxxxx was issued on the xx/xx/2017 (date of event). As the car park is camera controlled the vehicle details were forwarded to the DVLA to obtain the registered keepers details. The DVLA had provided the following details as the registered keeper;

Lex Autolease Ltd , Blake House, Hatchford Way, Birmingham, B26 3RZ

Mr X then appealed the PCN and refused to name the driver on the day in question. As Mr X did not provide the full name of the driver the liability remains with Mr X as the hirer of the vehicle. Mr X also confirmed to be the keeper of the vehicle.

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 Gladstones 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

..The PCN was to the lease company who is the registered keeper. Their details have been provided by the DVLA. Mr X received the PCN through the lease company and decided to appeal the notice.

The lease company did not appeal the PCN requesting to transfer the liability and therefore did not provide a copy of the hire agreement.

Mr X confirmed to be the keeper of the vehicle, however he refused to provide the name of the driver. Therefore the liability remains with him as the keeper of the vehicle/hirer.

Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the registered keeper’s/hirer’s responsibility to inform them of the full name and address within 28 days beginning with the day after the notice was given.

If the full amount remains unpaid, under Schedule 4 of the Protection of Freedoms Act 2012 (‘The Act’), Euro Car Parks have the right subject of the Act to recover from the keeper of the vehicle at the time it was parked so much of that amount which remains unpaid."

I tried sending a PM to Edna Basher but the inbox is full.
Please could any forum members with experience of POFA and leased vehicles Comment on ECP's response to the POPLA appeal.

dadsma

Stop Press - POPLA hands win to the appellant - He will be delighted.

Decision Successful

Summary of your case. The appellants case is that the operator has not successfully transferred liability to the keeper, the signage is insufficient and they doubt the operator has the landowners authority to issue PCN's.

Assessor supporting rationale for decision. PCN's are issued in respect of a driver's obligation to pay parking charges due under a contract, by parking the vehicle on relevant land. On this occasion, the operator has not provided sufficient evidence that the appellant was the driver of the vehicle at the time of the parking event. The burden of proof lies with the operator in demonstrating a parking contract was formed and, if so, whether the motorist kept to the parking conditions. The operator must then prove that it is pursuing the correct individual for the charge. I cannot accept the PCN is enforceable against the appellant. The appellant has raised other issues in their appeal, however it is not necessary to consider these in this case.

Umkomaas

There you go. Well done. :T

Could you also post this in the POPLA Decisions sticky, with a link back to this thread.

dadsma

Done.

Thank you forum members for your help.

The vehicle keeper says he will complain to Sainsbury's about their willingness to cancel the ECP charge if a customer spends more than £x that day.

He is waiting for a copy of the planning permission for the car park from Harrow Council to check whether Sainsbury's/ECP have not complied with it.

More on here when I have it.

Love and peace to all.

natalielouise90

Wondering if there's been any update on the planning permission. I used the car park a couple of weeks ago to go for dinner on the high street. This is why I'm curious as to whether this is legitimate use of the car park. I believed the parking allowance was 2 hours and so I stayed just under that amount of time. I received a ticket, not realising it was 90 mins max. I'm so tight on money right now that if there was any way to fight it (as it was an unintentional error) then I'd hope to do so. But if there's no grounds for me to fight it on then I'll pay it.

Umkomaas

Lack of planning permission has never won an initial appeal, a POPLA appeal nor a small claims’ court case. The reason people are pursuing it is to give the PPC a bit of ‘pay back’ in return for the hassle they are creating for the motorist.

Forget it.

If you want help with a parking charge, first read the NEWBIES FAQ sticky, post #1 to start with. If, after thoroughly absorbing it (a skim read won’t do that for you), you have further questions/need help, please start a new thread of your own - nothing further on a thread belonging to another poster, otherwise messages get confused, which could prove extremely costly for either, or both of you.

Coupon-mad

But if there's no grounds for me to fight it on then I'll pay it.

No you won't, not now you are here. Read the NEWBIES thread, these are not to be paid.