POPLA requests comments after ECP's evidence 4/11/2019

krmach

So today I have received an email from POPLA notifying me that Euro Car Parks have uploaded evidence in their portal and is asking me to provide comments within 7 days.

Here's the full document in Google Drive:
(sorry still sorting it out, trying to redact sensitive info)

My 26-page letter of appeal sent to POPLA focused on the following points:

1. 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.

2. Non-compliance to the Grace Period stipulated in the British Parking Association’s Code of Practice.

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

4. No Evidence of Period Parked - Notice to Keeper (NtK) does not meet PoFA 2012 requirements

5. The ANPR System is Neither Reliable nor Accurate

6. The signs fail to transparently warn drivers of what the ANPR Data will be used for.

This is the response submitted by ECP:

This location is managed by Automatic Number Plate Recognition (ANPR) technology which takes a picture of the vehicle entering and exiting the site, these pictures are timed and therefore the duration of the stay can be calculated. All vehicle registration numbers are then matched against the data produced by the various means of paying for parking and a list of registration numbers where no payment has been made or where the motorist has stayed longer than the period paid is produced. After requesting vehicle keeper details from the DVLA, a Notice to keeper is sent to the keepers of the vehicles on this list. As a consequence at ANPR locations
there will be no PCN issued to the windscreen neither will there be photographic evidence of the windscreen supplied in operator evidence packs.

Parking Charge Notice XXX was issued to vehicle XXX for breach of terms and conditions:

No valid pay and display/permit was purchased at XXX Shopping Centre. This car park operates an ANPR + P&D/Pay by Phone operation, therefore all vehicles are required to purchase a valid ticket for the full duration of stay within the car park.

Statement: Mrs XXX stated the following:
- No Clear Signage
- No Grace Period
- Non compliance
- No Landowner Authority
- POFA

Euro Car Parks can confirm the following:
-Section 18.3 of the British Parking Association’s (BPA) code of practice explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to
see, read and understand.

-Signage on site is clear, when parking on private land it is the driver’s responsibility to read the signage displayed and parked accordance with the terms and conditions as stated.

- Euro Car Parks have provided photographic evidence showing that the appellant remained at the site for 13 (MM) (Figure 1)

-Signage is visible when entering and inside of the car park and when entering private land it would be the driver’s responsibilty to read the terms and conditions and adhere to them. (Figure 2 – See Section 7).

-Below is the transaction report of payments; there are no transactions matching (plate number):
**Screenshot of paid transactions***

According to BPA Code of Practise 13.4 – car park operators should allow the driver a reasonable period to leave the private car park after the parking contract has ended; before enforcement action is taken. If the location is one where parking is normally
permitted; the grace period at the end of the parking period should be a minimum of 10 minutes.

-Figure 3 confirms that the NTK is PoFA compliant.

-Figure 4 shows the agreement between ECP and Savills.

Any form of parking ticket or ‘notice’ is issued under the law ‘of trespass and Contract Law’. A driver who is invited (or chooses) to park on private land and use the car parking facilities and
pays a fee/s does so under a contract (signage) with the car park operator. The parking contract sets out the terms that apply to the parking service, including the price.

-The contract (signage) clearly states the extra charges are that the driver will incur and have to pay if they decide to break the contract terms − for example, by parking longer than the time
paid for or exceeding the maximum time limit applicable.

-Automatic Number Plate Recognition systems are effectively image processing and microprocessor devices with an internal reference clock based around a set of components referred to as the ‘Real Time Clock chipset’ or RTC. The chipset uses a quartz crystal reference source and will provide a reliable time reference dependant on a drift characteristic determined by variations in local camera temperature. High fluctuations in local ambient can cause the RTC to drift as much as 30 seconds a month and to counteract this an NTP server is utilised. The NTP server is effectively a computer situated in a control room and takes a reference time source from a GPS satellite and provides a hyper accurate time reference. All camera systems
operated by ECP are configured to request a time synchronisation from the NTP on a sixty second basis. This ensures that all cameras have a universal time reference which is accurate to a few thousandths of a second. Cameras also report a ‘heartbeat’ to our back office environment, again on a sixty second basis, and this is used to establish camera operation; logs of these transactions from all cameras are retained for approximately six months. On
capture of an ANPR read this is transmitted to a similar back office environment where the time difference between that tagged on the raw capture and the ‘real time’ of the servers is again tested.

-All ANPR cameras used by ECP are compliant under the home office approval framework as stated under NAAS/NASP.

-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.

-According to BPA Code of Practise 13.4 – car park operators should allow the driver a reasonable period to leave the private car park after the parking contract has ended; before enforcement action is taken. If the location is one where parking is normally permitted; the grace period at the end of the parking period should be a minimum of 10 minutes.

-On entry to private land it is the responsibility of the driver to check for signage and ensure that your vehicle has been correctly parked. Any vehicles found not adhering to the signage will be
issued with a parking charge notice (PCN).

-Please be advised that there are a number of signs around the car park indicating the restrictions of the site and it is the responsibility of the driver to read them when parking.

-We note that in your letter you state that the parking charge notice (PCN) is not enforceable as you have currently not entered into a ‘contract’ with Euro Car Parks. 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.

-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.

Figure 1 Shows my car coming in and out of the car park
Figure 2 A close up of the signage (without showing its relation to the car park)
Figure 3 Notice to Keeper template with the POFA bit highlighted
Figure 4 BPA Code Of Practice until point 11 Contravening the CoP. This continues to an Authorisation Instructions from Savills which says:

"Savills (the Client) hereby authorises ECP (collectively the parties) to carry out parking enforcements at XXX shopping centre, address, as delineated on the plan attached between the parties and in the manner set out in the agreement.
.....
8. Savills (the Client) undrstand and confirm that any data collected by ECP will used (sic) only for parking control and parking enforcement only...


For Savills:
Signature
Print
Date

For Euro Car Parks:
Signature
Print
Date

XXXX end of text XXX

In page 3 of ECP's response, they said:

"An official appeal representation was received on the 16 September 2019 where Mrs xxx stated that she was not the driver on the day in question and requested for more evidence."

In my initial appeal letter (to get the POPLA number), I said:

"I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a formal complaint about your conduct to your client landowner and to
my MP.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your Parking Charge Notice is a vague template, I require ALL unedited photos taken and an explanation of the allegation and your evidence, i.e.:
...

There is nowhere in any of my communication with ECP that I said I am the driver!!

The ECP's response didn't really address the points I've raised, they merely cited what's in the BPA CoP. And possibly tried to bog down the POPLA assessor with numerous nonsensical evidence in the hope that the decision will be on their side.

Any thoughts? I'm going to read through previous response in other threads but I'll appreciate if you can spare some thought on my case and suggest which points I should focus my response to.

Thanks very much!

Umkomaas

You just have to go through the ECP evidence and rebut anything that is wrong or that you disagree with. Any points in your own appeal that ECP have failed to address (especially if they are important points), you insist that ECP have accepted them.

You only have 2,000 characters (not words) to respond.

Redx

check NTK , LANDOWNER AUTHORITY , SIGNAGE etc


do as Umkomaas said, find anywhere they agreed with you , didnt disagree with you , or flaws in their evidence


read recent 2019 popla rebuttals and plagiarise those for inspiration, its all been done before, so more of the same


2000 characters is short so keep it concise , no waffle , no full stops

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/76460835#Comment_76460835

Doesn't matter, win or lose at POPLA v Euro Car Parks, you wont be paying.

krmach

Thanks Umkomaas and Coupon-mad. I have drafted the rebuttal below which is around 1459 characters, I could still add few bits:

None of the points raised in my appeal has been addressed by ECP. They have merely copied what the BPA CoP states without explaining why they have failed to comply.

ECP tried to mislead by saying I have admitted to be the driver, I strongly refute this fact. Nowhere in my communication shows this admission nor ECP have any proof to show I was the driver. POPLA must first consider whether they are confident that the Assessor knows who the driver is based on the evidence received in this case there is none.

The main points about the absence of prominent signage as one enters the car park, the grace period of a minimum of ten minutes (not maximum), unredacted copy of contract with the landowner under strict compliance to BPA CoP Sec7.3 showing clear boundaries of the land where ECP is allowed to operate among others, no evidence of period parked defined in POFA 2012 9(2)(a), and the location of cameras used in relation to their signages were all ignored by ECP therefore I insist that they accept the validity of these points.

Nowhere in the photo of the car park entrance I submitted Fig3 does it show a prominent sign compliant to Sec 18 of the BPA CoP and POFA 2012 there was simply no signage at the entrance and a warning that an ANPR is being used and ECP failed to show otherwise.

The image showing the car park layout with two yellow arrows does not show the actual signage at the entrance. Where ECP claims to have signage only validate my point that these signs were small, obscured and were not compliant, a simple comparison with the Beavis case sign proves this.


xxx

Fruitcake

Hitting enter a few times would make that easier to read.

As above, if they fail to address any of you points, that means they must agree with you.

Did you mention both grace periods in your appeal?

Where you mention the lack of entrance sign, quote the BPA CoP that specifically address entrance signage and point out there isn't an entrance sign.

The_Deep

[FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]

krmach

Thanks very much to all who replied, I think I'm ready to submit my reply to POPLA.

Copied with spaces here for ease of reading (thanks Fruitcake), 1940 characters.

----

None of the points raised in my appeal has been directly addressed by ECP. Their failure to provide strong evidence against the issues I have raised, instead copying and pasting what the BPA CoP states, shows that ECP agree with my appeal.

ECP tried to mislead by saying I have admitted to be the driver, I strongly refute this fact and should be noted by the Assessor. Nowhere in my communication shows this admission nor ECP have shown any proof that I was the driver. POPLA must first consider whether they are confident that the Assessor knows who the driver is based on the evidence received, in this case there was none.

The main points about the absence of prominent signage as one enters the car park (BPA CoP AppendixB), the grace periods - one at the end (of a minimum of ten minutes) and one at the start (BPA CoP13), unredacted copy of contract with the landowner under strict compliance to BPA CoP Sec7.3 showing clear boundaries of the land where ECP is allowed to operate among others, no evidence of period parked as defined in POFA 2012 9(2)(a), and the location of cameras used in relation to their signages were all ignored by ECP therefore I insist that they accept the validity of these points.

Nowhere in the photo of the car park entrance I submitted in my appeal Fig3 does it show a prominent sign compliant to Sec 18 of the BPA CoP and POFA 2012 Sched4, in actual fact, there was no signage at the entrance at all pertaining to the charges and a warning that an ANPR is being used. ECP failed to show otherwise. The image they submitted showing the car park layout with two yellow arrows does not show the actual signage of the entrance. It cannot be assumed that the signage exists without evidence. Where ECP claims to have signage only validate my point that these signs were small, obscured (behind walls) and were not compliant, a simple comparison with the Beavis case sign as shown in my appeal proves this.

---

nosferatu1001

"POPLA must first consider whether they are confident that the Assessor knows who the driver is based on the evidence received, in this case there was none."
Thats just a C&P from teh appeal. I wouldnt say that
I woudl state that ECP have made an assertion that I was the driver, based on a supposed "admission" in the appeal. You will note in my appeal on... that at no point do I state I am the driver. This is a clear attempt by ECP to mislead POPLA by making an untrue statement, and as such I trust POPLA will uphold the appeal on this point alone. None of ECPs submissions can be relied upon,a s they have lied.

Coupon-mad

Just so you are pre-warned by us, you will quite possibly lose - as ECP usually comply with the POFA so no need for them to know who was driving - but as I said:

Doesn't matter, win or lose at POPLA v Euro Car Parks, you wont be paying.

krmach

Just a quick update on my case.

After submitting my appeal to POPLA on 30 October and POPLA asking me to comment on the response submitted by Euro Car Parks (Nov 4), I have finally received a decision from POPLA on 10 December.

It was certainly an early Christmas present as my appeal was successful. I'm sharing an excerpt of the decision below but for those who don't have time to read the lengthy post, the assessor focused on the Grace Period issue I have raised and agreed with me that the length of time spent in the parking lot, around 13 mins, is not unreasonable.

----Decision---
"The appellant has raised a number of grounds for appeal however my assessment will focus on the ground where the appellant states, the appellant has advised the operator has not complied to the Grace Period stipulated in the British Parking Associations (BPA) Code of Practice.

The appellant has advised that as stated earlier whilst section 13.4 of the BPA Code of Practice does not apply in this case as a contract was never entered in to, it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.

The appellant further advises if the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate and read terms and conditions, decide not to enter into a contract and then leave the car park. The appellant advised it is therefore argued that the duration of visit in question which the operator claims to be 13 minutes 2 seconds is not an unreasonable grace period. The British Parking Association (BPA) Code of Practice sets out the requirement for operators to provide a grace period, in which it will not issue a PCN for a breach of any terms of parking which, by their nature, require a grace period in order to be complied with.

For instance, any term that requires a ticket to be purchased or vehicle details registering must imply a grace period in order for the motorist to comply. For a contract to be entered into there are a few things that need to happen. Firstly, there needs to be an offer, which must be reasonably brought to the motorist’s attention. Within parking this is done through the signage at the site, which sets out the terms and conditions.

For a motorist to be bound by a contract, they must have been afforded a reasonable opportunity to read and understand the offer. In this instance the appellant has advised that it stands to reason that at least the same period of time is reasonable to also enter a car park, locate and read terms and conditions, decide not to enter into a contract and then leave the car park. After considering all the evidence and comments provided by both the operator and appellant, I consider 13 minutes to be a reasonable grace period for a motorist to enter the site and leave once the decided they did not agree to the terms and conditions.

As such, I cannot confirm that the requirements of the BPA Code of Practice have been met and as a result, I cannot confirm the PCN has been issued correctly on this occasion."