ECP NTK for overstayed on free parking

Shaagetl

Hi All,

After reading a lot of topic on this forum about ECP PCN I've created my own appeal to POPLA. It is mix of some elements I've found on this forum.
Typical story: driver overstayed on free parking managed by ECP for about 35 mins. Parking in next to Halfords and some bargain store, however I haven't try to complain to them, yet.
As keeper I've received Notice to Keeper 6 days after date of the event.

I've looked into various threads however haven't seen case when driver overstayed more than 20+ mins (which can be counted as grace period still, so I wonder if there is sense to appeal to POPLA? Do you think below is enough or that defence line doesn't work anymore?
Best,
Shaagetl




POPLA Verification Code: XXXXXXX
Vehicle Registration: XXXXXXX

I, the registered keeper of this vehicle, received a letter dated 1/11/2019 acting as a notice to the registered keeper. My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 15/11/2019 and rejected via an email dated 03/12/2019.
I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
3. 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.
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.
5. No period of grace given for the driver to read the additional signs within the car park.
6. Euro Car Parks have provided no evidence that the ANPR system is reliable.

1. 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 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.''

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 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 (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. 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

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."

Neither the Notice to Keeper nor appeal rejection from Euro Car Parks contain any photographic or any other evidence in support of Euro Car Parks request for payment.

The image of a sign provided by Euro Car Parks in their rejection note of my appeal does not contain a date and time stamp, or specify the precise location of the sign. 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 when viewed from a vehicle or on foot from below or in poorly lit areas or times of the day.

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.

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:

[LINK]

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.

Figure 1 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:

Figure 1: Beavis sign


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, the signs are sporadically and sparsely placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being 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.

Euro Car Parks’ main car park sign on the Staines Road Retail Park in Hounslow is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure 2).
Figure 2: Staines Road Retail Park - main car park sign close-up

The image in Figure 2 shows a close up of the main car park sign. It clearly shows that Euro Car Parks’ signage does not comply with the BPA Code of Practice (18.3), specifically:
“Signs must be conspicuous and legible, and written in intelligible language,
so that they are easy to see, read and understand.” 7


The section in red text at the bottom of the sign (see Figure 2) that is apparently an “Important Notice” is in tiny text that is impossible to read without a step ladder, particularly in the dark when you would also need a torch. It cannot be ignored – the wording used clearly states it is important and therefore urges the reader to fully read and understand. Why is something so important so small and illegible? Furthermore, red text on a yellow background is difficult to read, especially in low light conditions or with artificial light introducing a glare onto the reflective surface of the sign.

Indeed, in relation to design principles, it is widely known that colour contrast plays a key role in terms of accessibility as it “affects some people’s ability to perceive information (in other words to be able to receive the information visually).” (Government Digital Service, 17 June 2016). Whilst this web page discusses design principles in relation to web design, the same points are true of print-based materials which would include signage.

“Specific parking-terms signage tells drivers what your terms and conditions are, including your 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 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. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”
Areas of this site are unsigned and there are no full terms displayed clearly indicating non-compliance with the BPA Code of Practice (18.3) which states:
InSeptember 2017 a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.


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 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.—(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.


5. Photo Evidence Open to Being Doctored

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time and location) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge ECP to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).
6. GracePeriod:BPACodeofPractice–non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
“Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA’s Code of Practice (13.2) states that:
“You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. 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.”

BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.
In late November 2017 there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”
Finally in July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':
“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads:
“Reword Clause 13.4 to ‘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 11 minutes.” (Source:
[LINK]

This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken
As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park. In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. 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.”


8 .Euro Car Parks have provided no evidence that the ANPR system is reliable.

The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Euro Car Parks has not provided any evidence to show that their system is reliable, accurate or maintained.

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

KeithP

Shaagetl wrote: »

Parking in next to Halfords and some bargain store, however I haven't try to complain to them, yet.

Then you should do that before appealing to PoPLA.

Redx

I agree, the NEWBIES thread tells everyone to complain to the retailer or landowner first, especially before any POPLA appeal is made


the popla appeal seems to have the correct stuff in it , poor and inadequate signage , no landowner authority etc


a landowner or retailer cancellation is always best, but those retailers may not own the land so if its a retail park, find out who the managing agent or owner is and complain to them

Shaagetl

Thanks KeithP and Redx for advice.
I haven't complain to retailer as I've read, even on this forum, that such complain doesn't seem to work.
But will follow up on your suggestion anyway and see how that goes.

KeithP

Well the NEWBIES thread says that the first thing to do is complain...

ALL CASES - COMPLAIN FIRST, ESPECIALLY OVER A RETAIL, HOTEL, OR HOSPITAL CAR PARK:

Always complain to the Retailer very quickly and assertively, WITH A RECEIPT IF POSSIBLE:

Successful complaints about private parking tickets - how to get them cancelled! <<< CLICK

See how easy it can be to get these cancelled by a retailer/hotel/landowner. VERY EFFECTIVE AND DAMAGES THE PPC!

Of course, sometimes complaining won't work, but it is always worth trying.

Egbert_Nobacon

Trust me polite but firm retailer/landowner complaints can often be successful.

You don’t know unless you try.

Coupon-mad

Never do POPLA first. It actually stops retailers being able to cancel.

MistyZ

Shaagetl wrote: »

I haven't complain to retailer as I've read, even on this forum, that such complain doesn't seem to work.

Worked for me.

I've puzzled about why many seem reluctant to complain. I suspect that it seems almost too easy compared to constructing appeals, defences etc. And also think that people often don't report back about successful complaints because there's not the same sense of achievement as there can be with a winning appeal.

The 'human element' required is hard to convey to those caught in the net. You need self-belief - don't let the parking scammers undermine that. If the car has been parked to enable hard-earned cash to be spent, then 9 times out of 10 there's a good basis for a complaint to the landowner.

Shaagetl

Hi Guys,
I've actually complained to Halfords and HomeBargain as both retailers are using this car park. First one hasn't got back with anything, second one said they don't manage car park and send me to ECP. I will send one more message to Halfords since it's been more than 5 days and they claim to get back within 5 days.

In a meantime I also received operators evidence pack on which I can comment. Any comments on this steps, do I repeat what was in appeal?
Thanks

Redx

no you dont , you go through it and rebut anything that is incorrect , unsigned or out of date contracts etc, check where they agreed with you, read other 2019 rebuttals by using suitable search words in the forum search box

ensure its less than 2000 characters (not words) , so concise bullet points

do not repeat your appeal, thay already have it , this is your remarks on the operator evidence, not your appeal

as for the land , ask the council who pays the non domestic business rates

or alternatively , pay the Land Registry £3 as your last resort

Tank40

Regarding complaining to landowners/retailers, does it matter if your complaint identifies the driver (in effect) because the wording would probably be more effective if you said I did this or I parked for such and such a time?