ECP POPLA appeal almost ready to submit - which grounds of appeal are irrelevant?

Coupon-mad

However, it only refers to "the sites listed in Appendix 2", which they haven't included. Is that grounds to say there's no proof of landowner authority since it doesn't specify this particular pub and car park?

Yes yes and more yes! But spell it out very clearly as POPLA can be a bit dumb.

El_spectre

Great - thank you Coupon-mad! I've also noticed (from following some of the Newbies #3 links) that there's no specific date of contract, and it was signed over a year ago.



I've also just realised that the list of transactions from the parking machine (which they've given as evidence that no ticket was bought) is from a time over half an hour after the images they've provided say the car entered the car park. I failed to spot this even though they gave the same evidence in their appeal rejection, so I didn't put it in the POPLA appeal. Should I raise it now, given that they haven't proved that a ticket wasn't bought at the time of entry or for half an hour or so after?


The bits that really confuse me are PoFA and No Keeper Liability. They say, "The Protection of Freedoms Act (PoFA) does not alter the principle of driver liability. What it does do, is to allow proceedings against the registered keeper for unpaid parking charges when the landowner or their agent, the parking operator does not know who the driver was at the time.


Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the registered keeper’s 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 (‘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."



Any advice on responding to that? I'm going to keep searching and I'll post here if I find a relevant snippet to use.



Thanks again for the help - I really want to win this appeal!

Coupon-mad

I would leave the stuff about the POFA out of the comments.

I've also noticed (from following some of the Newbies #3 links) that there's no specific date of contract, and it was signed over a year ago.

Point out to POPLA that there is no EXPIRY date and nothing to suggest it was a rolling contract either, so it can't be assumed to have been active on the material date.

I've also just realised that the list of transactions from the parking machine (which they've given as evidence that no ticket was bought) is from a time over half an hour after the images they've provided say the car entered the car park. I failed to spot this even though they gave the same evidence in their appeal rejection, so I didn't put it in the POPLA appeal. Should I raise it now, given that they haven't proved that a ticket wasn't bought at the time of entry or for half an hour or so after?

Brilliant spot! YES YES YES, put that as your first comment!

:T

MarcoM

El_spectre wrote: »

Great - thank you Coupon-mad! I've also noticed (from following some of the Newbies #3 links) that there's no specific date of contract, and it was signed over a year ago.



I've also just realised that the list of transactions from the parking machine (which they've given as evidence that no ticket was bought) is from a time over half an hour after the images they've provided say the car entered the car park. I failed to spot this even though they gave the same evidence in their appeal rejection, so I didn't put it in the POPLA appeal. Should I raise it now, given that they haven't proved that a ticket wasn't bought at the time of entry or for half an hour or so after?


The bits that really confuse me are PoFA and No Keeper Liability. They say, "The Protection of Freedoms Act (PoFA) does not alter the principle of driver liability. What it does do, is to allow proceedings against the registered keeper for unpaid parking charges when the landowner or their agent, the parking operator does not know who the driver was at the time.


Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the registered keeper’s 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 (‘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."



Any advice on responding to that? I'm going to keep searching and I'll post here if I find a relevant snippet to use.



Thanks again for the help - I really want to win this appeal!

if you find a snipper could you please post it for others?
thanks

El_spectre

MarcoM wrote: »

if you find a snipper could you please post it for others?
thanks

I've found nothing, I'm afraid, either on here or elsewhere. I could reiterate that two images of a vehicle entering and leaving a car park are not evidence of parking, and that writing "the vehicle entered at x and left at x" is not stating the period parked.



I'll follow CM's advice and drop that bit, given that there's plenty of other stuff to write about.

MarcoM

El_spectre wrote: »

I've found nothing, I'm afraid, either on here or elsewhere. I could reiterate that two images of a vehicle entering and leaving a car park are not evidence of parking, and that writing "the vehicle entered at x and left at x" is not stating the period parked.



I'll follow CM's advice and drop that bit, given that there's plenty of other stuff to write about.

out of curiosity when you sent the appeal to the parking company did you just use a basic template?

El_spectre

MarcoM wrote: »

out of curiosity when you sent the appeal to the parking company did you just use a basic template?

The original appeal used the template in the newbies thread, plus I added a section about the breach of the BPA COP as drivers hadn't been alerted to the new charges. The new signs look identical to the previous signs.

El_spectre

After over a month, I got a very huge rejection - POPLA decided I was unsuccessful. I'll post it below but it's absolutely massive. I wish they could use paragraphs... What do I do now? Just ignore the letters to come? I'm feeling very aggrieved to say the least.



Decision
Unsuccessful

Assessor Name
Mark Yates

Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) as the appellant’s vehicle was parked on site without making a payment.


Assessor summary of your case
The appellant’s case is recent parking changes have not been indicated by signs, nor have drivers been alerted in any other way. The appellant states the driver has been parking at the site regularly and the terms and conditions have changed from 90 minutes free stay to paid parking. The appellant explains the signage on site is not clearly and prominent with relation to the amount of the charge, the operator has not shown the individual was the driver, no evidence of landowner authority, the operator has not complied with section 21.4 of the British Parking Association Code of Practice, no evidence of period parked, not complied with section 20.5 of the British Parking Association Code of Practice, no transparency to warn drivers what Automatic Number Plate Recognition data will be used for, and no planning permission for Automatic Number Plate Recognition cameras.


Assessor supporting rational for decision
As I am unable to determine who the driver of the vehicle was on the date in question, I must ensure Protection of Freedoms Act 2012 has been complied with. Protection of Freedoms Act 2012 is used to transfer liability for the Parking Charge Notice from the driver of the vehicle to the keeper of the vehicle. Having reviewed the Notice to Keeper, I am satisfied that the operator has shown strict compliance with Protection of Freedoms Act 2012 and as such, liability for the Parking Charge Notice has been transferred to the keeper of the vehicle. The operator has issued a Parking Charge Notice to the appellant for the vehicle parking on site without making a valid payment. The operator provided Automatic Number Plate Recognition images of the appellant entering at 15:23, and exiting at 16:41, which is a total stay of one hour 18 minutes. The appellant states that the driver was not made aware of the recent changes to the terms and conditions of the car park. The British Parking Association Code of Practice section 18.10 states “Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/ temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.” The appellant in the appeal states the car park previously was a 90 minute free stay site. The operator provided evidence of the signage on site that confirmed the signs have been on site since 5 August 2019. The date of the alleged parking contravention was 28 August 2019. I consider 23 days beyond a reasonable grace period for regular users of the site to become aware of the new parking restrictions in place. The appellant states the signage on site the amount of the charge is not clear and prominent with relation to the amount of the charge. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act 2012 (PoFA 2012) it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. The operator has provided photographic evidence of the signage on site that states: “THIS CAR PARK IS CONTROLLED, FAILURE TO COMPLY WITH THE FOLLOWING WILL RESULT IN THE ISSUE OF A £75 PARKING CHARGE NOTICE” The appellant states 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. As I have outlined in this report the operator has issued a Notice to Keeper, which I consider complies with the Protection of Freedoms Act 2012, which means that the operator can transfer the liability for the Parking Charge Notice from the driver to the keeper of the vehicle. Therefore, the fact that the driver is not known is not relevant in this case. The appellant has questioned the operator’s authority in issuing and pursuing PCNs at this site. The British Parking Association Code of Practice section seven explains “If you do not own the land which you are carrying out parking management, you must have the written authority of the landowner. The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges After reviewing the contract provided by the operator I am happy that this complies with Section seven of the BPA Code of Practice, and I am satisfied that the operator has proven that it had the authority to operate on the land on the date in question, as well as pursue unpaid parking charges through the courts. The appellant states that failure to comply with the ICO Code of Practice applicable to Automatic Number Plate Recognition is a breach of section 21.4 of the British Parking Association Code of Practice. The British Parking Association Code of Practice section 21.4 explains “It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must: • be registered with the Information Commissioner • keep to the Data Protection Act • follow the DVLA requirements concerning the data • follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.” The signage on site states: “Euro Car Parks Ltd does not have to agree with your request but under data protection law must explain to you why we do not.” Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. If the driver was in disagreement with the terms and conditions of the site or felt that the terms and conditions of the site could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator. The appellant explains that there is no evidence of the period parked so the Notice to Keeper does not meet the Protection of Freedoms Act 2012 requirements. As I have outlined in this report, I consider that the Notice to Keeper issued to the appellant complies with the Protection of Freedoms Act 2012. The appellant states that the vehicle images contained in the Parking Charge Notice shows non-compliance with the British Parking Association Code of Practice section 20.5a. The British Parking Association Code of Practice section 20.5a states “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 operator provided images of the appellants vehicle entering and exiting which are date and time stamped. As a result, I am satisfied that the operator has complied with section 20.5a. The appellant states that the signs fail to warn drivers what Automatic Number Plate Recognition data will be used for, and that the operator does not have planning for the Automatic Number Plate Recognition Cameras. Section 21.1 of the BPA Code of Practice states “Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by Automatic Number Plate Recognition (ANPR) cameras for”. The signage on site states: “WE ARE USING CAMERAS TO CAPTURE IMAGES OF VEHICLE NUMBER PLATES AND CALCULATE THE LENGTH OF STAY BETWEEN ENTRY AND EXIT AT ALL TIMES INCLUDING BANK HOLIDAYS” As a result, I am satisfied that the signage on site informs motorists what the Automatic Number Plate Recognition cameras are used for. With relation to the operator not having planning permission, it is important to note when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. Ultimately, this did not have any bearing on whether the driver complied with the terms and conditions of the car park. In the British Parking Association (BPA) Code of Practice, section 18.3 states “signage tells drivers what your terms and conditions are, including the parking charges. You must place signs containing the specific parking terms throughout the site so that drivers are given the chance to read them at the time of parking or leaving.” Further it continues to state that signs “must be conspicuous and legible and written in intelligible language so that they are easy to see read and understand.” The operator provided evidence of the signage on site that I consider complies with section 18, which states: “UP TO 2 HOURS £3.00. The operator provided evidence which confirmed that no payment was received for the appellants vehicle registration. I acknowledge the motorist’s comments that the operator has not shown that no payment was received for the first 34 minutes the driver was on site. However, the appellant appealed stating the signage had changed from the first 90 minutes being free to its current terms and conditions. It would be unusual that a driver would make a payment when they were on site for less than 90 minutes which they believed was free. In addition, as this was not raised as a ground for appeal in the original submission to POPLA I have not considered it. Therefore, I conclude that the appellant has failed to adhere to the site’s terms and conditions by parking on site without making a valid payment. As such, I can confirm the PCN was issued correctly.

KeithP

El_spectre wrote: »

...it's absolutely massive. I wish they could use paragraphs...

Nothing to stop you using paragraphs. No-one will be reading that slab of text you have thrown at us.

Is there anything in particular that you want to point out?

El_spectre wrote: »

What do I do now? Just ignore the letters to come?

It's back to the NEWBIES thread.

Post #4 tells you how to deal with Debt collectors letters.

You need to be reading post #2 when you receive a Letter of Claim or official court correspondence.

El_spectre

Hi Keith,

I wasn't asking anyone to read it and will happily delete if it seems like that - it was just there for info really. I got about halfway through and skimmed the rest - I'm too cross to reread and improve the writing. (Too much like my day job in any case.) I posted it like that more to show what I was met with.

KeithP wrote: »

You need to be reading post #2 when you receive a Letter of Claim or official court correspondence.

More a matter of when not if, then?