ECP PCN Hire/Lease Car POPLA Appeal

Sketch

Hello everyone,

Our company [ABC LTD] have received a Parking Charge Notice from Euro Car Parks which we intend to dispute. The vehicle is a company car which is leased. Below are the pertinent details:

28th November 2018 - Date of the alleged event

6th December 2018 – Euro Car Parks NTK issued to [LEASE COMPANY] as Registered Keeper

10th December 2018 – [LEASE COMPANY] replies to ECP with Transfer of Liability statement naming [ABC LTD] as the leasee/hirer of the vehicle

14th December 2018 – Euro Car Parks NTK issued to [ABC LTD] (exactly the same NTK document but with [ABC LTD] address on)

10th January 2019 – Edna Basher ‘Fleet Manager’ Appeal submitted by [ABC LTD] to ECP

1st February 2019 – Appeal rejected by ECP. POPLA code issued. (side note probably of no relevance but worth mentioning, the appeal letter was address to [ABC LTD] but was sent to [LEASE COMPANY] who forwarded to [ABC LTD])

So our company are planning to complete a POPLA appeal within 28 days of 1st February. Having read through the Newbies thread and having searched the forum with as many keywords as possible for relevant similar cases, we have drafted the following to send to POPLA.

We are pretty confident this will win on the slam dunk ‘no additional hire-related documents supplied’ point that seems to be the major factor on hire/lease car PCN’s, so this is our main point. Additionally we have mentioned Landowner Authority, a section on the photo evidence from ANPR cameras and a final section regarding a lack of transparency on what the cameras are used for.
Do we need to cover the other 3 sections or would just the main point suffice?

Please could anyone have a quick look through and advise if any changes should be made?

I have noted Edna Basher’s comments here hxxps://forums.moneysavingexpert.com/showthread.php?p=75346767&highlight=#post75346767 about lodging a POPLA appeal as a company. Currently we have not declared anything about the driver and whether this was company business or not – where would be a good place to state that the driver was not on company business?


POPLA APPEAL:

As the hirer/leasee of the above vehicle at the time of the Parking Charge Notice (PCN), we wish to dispute the Parking Charge Notice which Euro Car Parks (ECP) issued against it. We would like to have the Parking Charge Notice cancelled based on the following grounds:

1. Failure to comply with the strict requirements of the Protection of Freedoms Act 2012 (POFA)
2. No evidence of Landowner Authority
3. BPA Code of Practice - further non-compliance - photo evidence.
4. 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.


1. Failure to comply with the strict requirements of the Protection of Freedoms Act 2012 (POFA)

In the case of a Parking Charge Notice (PCN) issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of the POFA 2012 to claim unpaid parking charges from a vehicle's hirer, the creditor must:

1) as per POFA 2012 Schedule 4, paragraph 14(2)(a), the creditor must have given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

Euro Car Parks did not provide us with a “notice to hirer”.

POPLA has promised that our case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and we expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that Euro Car Parks has failed to comply with Schedule 4 of POFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, 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) 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)).

Euro Car Parks did not provide us with copies of any of these documents, (a), (b) or (c).

Further, Euro Car Parks should have issued a “notice to hirer” in full compliance with the requirements of POFA, Schedule 4, Paragraph 14 (5);

Contrary to the requirements of Paragraph 14(5)(a), Euro Car Park's Parking Charge Notice to us did not 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;

Contrary to the requirements of Paragraph 14(5)(b), Euro Car Park's Parking Charge Notice to us did not refer the hirer to the information contained in the Notice to Keeper;

Contrary to the requirements of Paragraph 14(5)(c), Euro Car Park's Parking Charge Notice to us did not 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.

POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, we are simply exercising our right as hirer to appeal this PCN in exactly the same way as any other vehicle keeper or hirer is entitled to do.


2. 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 we 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.


3. BPA Code of Practice - further non-compliance - photo evidence.

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. Neither of these images contains a date and time stamp on the photographs nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The time and date stamp has been inserted into the letter underneath (but not part of) the photographs. The images have also been cropped to only display the number plate. As these are not the original images, we require Euro Car Parks to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.


4. 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’ signs do not comply with these requirements because the car park signage fails to specify 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.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(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 CCTV is in operation for security within the car park.

[embedded here will be a photograph of the parking sign]


Given the above we request that the Parking Charge Notice issued by Euro Car Parks be cancelled.

Coupon-mad

I would move #2, 3, and 4 down two numbers and add in there an extra 2 points:

2. The driver was not on company business - law of agency does not apply
...Then explain how the company knows, e.g. this was out of work hours, maybe was in a retail park unconnected to any business purpose that in any way relates to your business, ...and (maybe?) that the driver was not evidenced by ECP to be an employee and could just as easily have been an employee's wife/husband or partner, many of whom are allowed to drive the leased vehicles, and none of whom can possibly, ever, be assumed to be acting 'on behalf of' ABC Ltd, by any stretch of any so-called 'sector expert's warped imagination.


3. Unclear signage

Always have that template, the long one, throw it in.

Make sure the POPLA appellant is stated to be ABC Company Ltd at the right address.

Sketch

Hi Coupon-mad, thank you for your reply!

Your suggestions will be incorporated into our appeal and will be submitted to POPLA.

We will let you know what response we receive

Coupon-mad

Make sure you include this bit, it is intended for POPLA to read as they have previously said some utter DRIVEL that their 'sector expert' fed them:

by any stretch of any so-called 'sector expert's warped imagination.

Edna_Basher

Coupon-mad wrote: »

..........by any stretch of any so-called 'sector expert's warped imagination.

Indeed - you need to beware of POPLA's so-called "sector expert" on two fronts.

Firstly as C-M has highlighted, beware of the flawed advice he fed his team of POPLA assessors about a year ago regarding drivers of company vehicles:

Following some recent guidance from our Sector Expert, "XX", we have adopted a different approach to how we assess an appeal where the vehicle is a company vehicle and the company itself is appealing against the Parking Charge Notice (PCN). In the Notice to Keeper, I can see that the operator invited you to identify the driver. Instead, the company itself continued to appeal against the PCN on behalf of the driver. The only reasonable conclusion was that the driver was an employee of the company undertaking duties in accordance with his or her employer’s wishes. As an agent of the company, the driver had the authority to enter into contracts on its behalf. As such, our assessor has assessed the company’s liability for the PCN as if it were the driver of the vehicle.

If the driver was not on company business you will need to make this absolutely clear for the avoidance of doubt. Alternatively, you will need to explain that the location of the parking event is not one where on the balance of probabilities company business would be carried out (e.g. retail park, leisure centre etc.)

Secondly, beware of the advice the "sector expert" has given his team of assessors regarding the authority required of a person submitting an "appeal" on behalf of a limited company. If that person is not listed with Companies House as a director, POPLA will require that the "appeal" must also include a written statement from a company director to confirm that the person submitting the "appeal" is authorised to do so. Without such confirmation, POPLA will refuse to process the "appeal".

This is quite ludicrous. Whilst the "sector expert" believes that the actions of an unidentified driver of a company car (who may not even be an employee of that company) is sufficient to bind that company to a contract to pay a parking charge of £100 to a private parking operator, only a company director (or a named person authorised by a company director) is allowed to dispute that same £100 parking charge.

Yet the "sector expect" remains content that witness statements signed by Customer Services Managers, Facilities Managers etc. for and on behalf of car parks' landowners are perfectly valid. This is a clear case of double-standards in my view.

Coupon-mad

Yet the "sector expect" remains content that witness statements signed by Customer Services Managers, Facilities Managers etc. for and on behalf of car parks' landowners are perfectly valid. This is a clear case of double-standards in my view.

Totally agree. Have you hit a brick wall when complaining about this specifically?

Sketch

Hi Coupon-mad and Edna Basher,

Thank you for your additional replies since my last response (we forgot to enable notifications so didn't realise until now that further replies had been posted)

We would like to ask for your input / suggestions on the following before we submit our appeal to POPLA......


Firstly, here is our draft wording to state the driver was not on company business - do you think this is clear enough?

2. The driver was not on company business – law of agency does not apply

The driver of the vehicle was NOT on company business. We know this because the alleged parking breach occurred between the hours of 19:xx and 21:xx in Westbourne, an affluent residential and shopping area of Bournemouth. Our working hours are from 08:00 to 17:00 so the alleged breach clearly occurred outside of our working hours, some 48 miles away from our offices, in an area obviously unrelated to our business. In addition, our company vehicles are allowed to be driven by an employee’s partner, none of whom can possibly, ever, be assumed to be acting 'on behalf of' [ABC LTD], by any stretch of any so-called 'sector expert's warped imagination.


Secondly, we have added in the Unclear Signage template as suggested. Do we literally copy this (adjusting to suit a company appealing rather than an individual where required) and leave the clickable links as links?

We thought we read elsewhere that all images etc should be embedded into one PDF document, however we are unsure how we could do that with some of the links in this template?


Lastly, with regards to this.....

Secondly, beware of the advice the "sector expert" has given his team of assessors regarding the authority required of a person submitting an "appeal" on behalf of a limited company. If that person is not listed with Companies House as a director, POPLA will require that the "appeal" must also include a written statement from a company director to confirm that the person submitting the "appeal" is authorised to do so. Without such confirmation, POPLA will refuse to process the "appeal".

...as we are appealing as ABC LTD, we weren't planning on stating specifically the name of the person actually submitting the appeal. Having had a quick look at the POPLA appeal Step 3 'your details' section, this looks like it could all be filled in as ABC LTD in our case, with the exception of the e-mail address which would need to be a specific person. Is that enough to then require us to upload a written statement from a company director giving authority to appeal? (This is no problem, we just want to be sure of the process!)


Thank you again for your help - it is MUCH appreciated!

Le_Kirk

If it is a POPLA appeal, links and images should be embedded, giving the POPLA assessor no reason not to read the info or view the images.

Sketch

Le_Kirk wrote: »

If it is a POPLA appeal, links and images should be embedded, giving the POPLA assessor no reason not to read the info or view the images.

Hi Le_Kirk,


To be clear, you mean we can leave the links (to images or other websites for reference) in place, providing they are setup correctly as a hyperlink and take the POPLA assessor to the relevant image / article?

Coupon-mad

No, embed the actual image if it's a picture (e.g. the Beavis case sign, show it alongside your own photos of the useless signs at this location).

I realise some links are not to images. The signazon ebay one in the POPLA signage template, no longer works so no bothering with broken links.

What you want to produce is a pretty 'storybook with pictures' POPLA appeal like the examples linked in the NEWBIES thread post #3.

Just without the awful, unnecessary introduction with the terrible split infinitive. PLEASE don't copy a sentence that isolates ''I'' then a comma, then the poor verb several words later! I hate that damn grammar abuse template...

EDIT - I see you didn't. Your intro is fine!

Edna_Basher

Hi Sketch

It's okay for you to enter to name of your company as the "appellant" - i.e. first name, ABC, surname Limited. However, I recommend that the main body of your "appeal" is written on company letterhead and signed by a named individual with an accompanying statement duly authorised to act for and on behalf of ABC Limited.

The letter should then be scanned as a PDF and uploaded on the portal. You can paste a short message into the text box on POPLA's portal to include the main bullet points of your "appeal", stating that your full submission is contained in the attached letter.

If the person named in the letter is not an officer of ABC Limited (as registered with Companies House), you will need to upload a PDF copy of a second letter signed by an officer of the company confirming that the person submitting the "appeal" has the necessary authority to act on behalf of the company. When you upload this second letter, select "Third Party Authority" from the drop-down list of document types.

For future reference, should you have the pleasure of dealing with POPLA again, they require a letter of authority to be provided for each and every POPLA case. This is quite ridiculous when you consider that you don't have to be an officer (registered with Companies House) to represent your company in the Small Claims Court. The guidance that the "Sector Expert" has been dishing out to his team of POPLA assessors makes him look very silly indeed.