Euro Car Parks PCN - Read Newbies Setion

Mike313

Hi,

as above I have received a PCN from Euro Car Parks.

The letter stipulates the driver entered the car park at 18:04 and left at 20:19, so breached the Ts and Cs of the car park. However, it does not tell me how long I overstayed in the carpark? Is that normal?

Either way I have just read through the newbie sticky and PCNs, and about to send the template letter to the appeals department.

Noob question - would there be any point in asking the restaurant manager if they could get it cancelled? I'm guessing they have nothing to do with the carpark, but at the same time I assume a lot of their customers park there daily?

If not I will continue with my appeal letter

Thanks for any info.

waamo

The Newbies thread tell you that you should always try and get a cancellation from any shop, business or landowner.

nosferatu1001

Youve read the newbie thread, but still have revealed the driver? EDIT YOUR PSOT NOW. The driver parked. You are the keeper.

Of course, but only if the car park is theirs....

Mike313

waamo wrote: »

The Newbies thread tell you that you should always try and get a cancellation from any shop, business or landowner.

Does this apply even if the business/shop etc is adjacent to the car park or only if it is actually based on the carpark?

nosferatu1001 wrote: »

Youve read the newbie thread, but still have revealed the driver? EDIT YOUR PSOT NOW. The driver parked. You are the keeper.

Of course, but only if the car park is theirs....

Point taken.
I doubt the carpark is theirs

Just to give you an idea on maps

Restaurant:
28-30 Lord St, Stockport SK1 3NA. Carpark is literally across the road.

Quentin

You are given the options regarding complaints! If not a retailer etc csr park then consider complaint to the more appropriate body!

Mike313

Oooooh! Kaaaaaay!

Mike313

Quick update people.

My appeal was rejected as expected:

This was the response I got as well as the POPLA Code:

"Dear Mrs *****,

Thank you for your letter of appeal

The details of the Parking Charge Notice are as follows:

Having carefully considered the evidence provided by you we have decided to reject your appeal for
the following reasons:

The car park is operated by Automatic Number Plate Recognition (ANPR). Cameras capture
an image of vehicles entering and leaving the car park and calculate their length of stay on
site.

Signage is clear drivers must purchase a valid pay and display ticket for the full duration of their stay.

A pay and display ticket matching your vehicle
registration was purchased for £1.80 this would have entitled your vehicle to park for up to 1hour according to the clearly displayed tariff.

Your vehicle entered at 19:04:57 and exited at 21:19:14 a total stay of 2 hours and 15minutes.

The P&D/permit purchased did not cover the date and time of parking and therefore the notice has been issued correctly and will remain payable.

I would respectfully remind that contract law applies in this instance.

The car park is private property and signage on entrance and within the private car park clearly set out the rules and regulations of the car park and tariffs (if applicable).

By entering the car park, parking and leaving the vehicle the driver has accepted the contract and therefore if the driver fail to comply with the terms and conditions a parking charge notice will be correctly issued.

Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the registered keepers responsibility to inform 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, 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.

Please make payment of the discounted amount of £60.00 by visiting our website at https://www.eurocarparks.com or use the automated telephone service 0203 553 4559. Alternatively make your cheque payable to Euro Car Parks Limited (to include a £2.50 handling charge for cheque
processing) and post to Euro Car Parks Ltd, 30 Dorset Square, London, NW1 6QJ, quoting the PCN number on the reverse of the cheque. This amount is now due and the charge will be held for 14 days to allow time to make the payment. If payment is not received by this time the charge will increase to £100.00 and this may also result in the notice being passed to a third party with further charges applicable.

You have now reached the end of our internal appeals procedure. You can make an appeal to The Independent Appeals Service (POPLA) within 28 days online at
https://www.popla.co.uk with the following reference number *******. Alternatively, if you wish to appeal to the Independent Appeals Service by post a copy of the appeal application can be sent at your request. Please be advised that if you opt for independent arbitration of your case the ability to pay
the parking charge at the reduced rate will be at an end.
If you opt to pay the parking charge notice you will be unable to appeal to POPLA. If you choose to do nothing, we will seek to recover the
monies owed to us via debt recovery procedures and may proceed with Court action against you.
By law we are also required to inform you that Ombudsman Services (https://www.ombudsmanservices.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

Yours sincerely
PCN Coordinator
Parking Charge Notice Department"


They also attached pictures of the vehicle entering and leaving the carpark. Also a photo of the sign outside of the carpark.

I know that I need to draft up a POPLA Letter next. However, I just wanted to check that this one was still relevant to use???

https://forums.moneysavingexpert.com/showthread.php?t=5852800&highlight=euro+popla


Many Thanks

Coupon-mad

Yes it's alright(ish) but he mucked up the last point by copying a court defence!

These are better, IMHO:

https://forums.moneysavingexpert.com/showthread.php?p=74406264#post74406264

http://forums.pepipoo.com/index.php?showtopic=120153&st=40&p=1390123!!!entry1390123

I wrote the second one on pepipoo myself, as SchoolRunMum...obviously don't blithely copy everything, that one was about a disabled passenger/Equality Act but it shows you how I would word the ICO Surveillance Camera point in a POPLA appeal.

Mike313

Coupon-mad wrote: »

Yes it's alright(ish) but he mucked up the last point by copying a court defence!

These are better, IMHO:

https://forums.moneysavingexpert.com/showthread.php?p=74406264#post74406264

http://forums.pepipoo.com/index.php?showtopic=120153&st=40&p=1390123!!!entry1390123

I wrote the second one on pepipoo myself, as SchoolRunMum...obviously don't blithely copy everything, that one was about a disabled passenger/Equality Act but it shows you how I would word the ICO Surveillance Camera point in a POPLA appeal.

Thanks a lot for the response.
I have to be blatantly honest in saying that I am a bit overwhelmed by it all.
I thought your appeal letter was great, and I understand that I can't copy word for word. However, with the driver in my case, who simply overstayed in the carpark, would the points covered in the letter - minus the disabled passenger - provide enough grounds for appeal.

For instance, if I re-write the letter in my own words, without the disabled passenger points, would that be enough or would I need to elaborate further?

Many thanks again.

Mike313

I have just been reading over everything again. Would this be ok for my appeal ???- apologies, I have only reworded your appeal slightly:

POPLA Verification Code:
XXXXXXX
Vehicle Registration:
XXXXXXX


Dear Sir/Madam

I am not liable for the alleged parking charge and would like to appeal against it, based on the following grounds:


1. No contravention of the two terms on the bottom of the sign that could give rise to £100 parking charge.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
4. 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.
5. 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.
6. Breach of the BPA Code of Practice and ICO Code of Practice rules for ANPR and Surveillance Cameras



1. No contravention of the two terms on the bottom of the sign that could give rise to £100 parking charge.

The two contraventions listed under the words ''Failure to comply with the following will result in a £100 PCN...'' are nothing to do with any overstay - i.e. the sign doesn't create a contravention by overstaying. The driver did pay at the machine, the driver did display a valid ticket and the driver did park within the bay lines. There was no contravention of the terms as drafted.




2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

As a parking charge cannot be enforced against a keeper without a valid Notice to Keeper.
As the keeper of the vehicle, it is my given 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.

This is the only evidence supplied to me as keeper appellant by Euro Car Parks, an image purporting to be of a notice within the plot of land in question. The image is not date stamped or independently verified for its authenticity. Please note that there is no visible indication of the liability of any party, least of all the registered keeper of any vehicle:

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.''



3. 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 for disabled people, which under the EA, must be longer than the bare minimum times set out in the BPA CoP. Ten minutes is not enough for disabled patrons and it is contended that the landowner must have discussed and addressed the issue of disability before allowing this operator to commence any rigid rules of parking enforcement and time allowed for the tariff.

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




4. 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

On the signage, the two contraventions listed under the words:

''Failure to comply with the following will result in the issue of a £100 PCN (£60 if paid within 14 days of issue)'' are nothing to do with any overstay which makes the signage ambiguous. 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, where there was no quantifiable tariff and no disabled passenger with statutory rights.

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. 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.

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, there is one sign indicating a tariff (at the pay station) and the hourly rate is the only salient figure. The wording is 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 in a busy car park such as the one in question.

At the disabled bays there are no visible signs that tell drivers/passengers about £100 charge. This is a BPA CoP breach of paragraph 18.9:

''So that disabled motorists can decide whether they want to
use the site, there must be at least one sign containing the
terms and conditions for parking that can be viewed without
needing to leave the vehicle. Ideally this sign must be close
to any parking bays set aside for disabled motorists.''

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this carpark 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:

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.




5. 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!!!8217; 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':

Misleading omissions: 6.!!!8212;(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)!!!8212;
(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 merely that CCTV is in operation for security within the car park, and in fact the signs say the site is patrolled, so no driver would have any idea that ANPR was being used to calculate total stay time and that the 'expiry' time on the PDT was redundant. Anyone returning to a car in time, going by the ticket, would consider they had complied with the rules of this car park, even if they then had to spend minutes sorting out and loading/strapping the baby, buggy, and the needs of the disabled passenger, then carefully driving out.




6. Breach of the BPA Code of Practice and ICO Code of Practice rules for ANPR and Surveillance Cameras

This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor.

Members of the British Parking Association AOS are required to comply fully with such rules, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:

i) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

ii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers, disabled people and taking into account the prevailing conditions at the site on any given day), and

iii) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and

iv) Lack of the Privacy Notice required to deliver mandatory information about an individual's right of subject access. At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held.

The BPA CoP says at paragraph 21.4:

It is also a condition of the Code that, if you receive and
process vehicle or registered keeper data, you must:
!!!8226; be registered with the Information Commissioner
!!!8226; keep to the Data Protection Act
!!!8226; follow the DVLA requirements concerning the data
!!!8226; follow the guidelines from the Information
Commissioner!!!8217;s Office on the use of CCTV and
ANPR cameras, and on keeping and sharing personal
data such as vehicle registration marks.

This operator has ignored the surveillance camera rules and if they disagree they are put to strict proof of (i) to (iv) above.


It is respectfully requested that this Notice to Keeper request appeal be upheld on every point.

Regards

*****

Coupon-mad

Remove this bit in any non-disability related appeal:

At the disabled bays there are no visible signs that tell drivers/passengers about £100 charge. This is a BPA CoP breach of paragraph 18.9:

''So that disabled motorists can decide whether they want to
use the site, there must be at least one sign containing the
terms and conditions for parking that can be viewed without
needing to leave the vehicle. Ideally this sign must be close
to any parking bays set aside for disabled motorists.''