ECP vs hire car visit to petrol station; appeal allowed

Tank40

Just wanted some feedback before the POPLA appeal is submitted.

A PCN from Euro Car Parks was received by a hire car company. The hirer told them to supply ECP with the necessary details so that the hirer could deal with it.
Initial appeal was denied and POPLA code given.
Can't link to redacted docs due to being new user.

These are the time frames which seem in order:
Alleged breach 20/9/2019
NTRK sent approx 27/9/2019
RK receives NTRK 30/9/2019-2/10/2019
RK supplies hirer's details (at hirer's request) 9/10/2019
Hirer receives NTH/K 31/10/2019 (letter states posted 28/10/2019)
18/11/2019 appeal sent
3/12/2019 denial received (letter dated 29/11/2019)
Which gives the hirer until 29/12/2019 to submit the POPLA appeal.

Here's what the hirer's got so far:

As the hirer of the above vehicle, I wish to appeal the parking charge notice issued by Euro Car Parks Ltd and have the parking charge notice cancelled based on the following grounds:

1) No hirer/keeper liability
2) Photographic evidence is non-compliant
3) No evidence of period parked
4) No authority from landowner to operate
5) Lack of signage, unclear & incorrect signage
6) The ANPR system used is neither reliable nor accurate


1) No hirer/keeper liability, The Notice to Keeper is not compliant with either the Protection Of Freedoms Act 2012 or BPA code of practice.

Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper or hirer but this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper or hirer liability' does not exist.

The registered keeper has absolved themselves of any responsibility for the parking charge in question by naming the hirer and supplying the hirer’s address. However, the creditor has not satisfied the conditions to transfer liability from the driver to the hirer:
Paragraph 14 (a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper.
The documents required are defined here:
Paragraph 13 (2)(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.
This requirement is also clearly stated in the BPA Code of Practice (BPA CoP):
20.19 Your Notice to Hirer must satisfy the detailed requirements of of Paragraph 4, including:
the contents you need to include in the Notice to Hirer -paragraph 14(5)
the documents you must send with it paragraphs 13(2) & 14(2)

No such documents were supplied with the Notice to Hirer.

According to POFA, the Notice to Hirer must also:
Paragraph 14 (5) (a) 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;
...
(c) 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.

The ‘notice to hirer’such as it is fails to quote Paragraph 14 (5) (a) and incorrectly refers to a period of 29 days.

If ECP should try to suggest that there is any method within the aforementioned statute whereby a keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and yet remain not lawfully able to be held liable, under Schedule 4:

“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.”


2) Photographic evidence non-compliant with BPA CoP

“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." BPA CoP 20.5a

The parking charge notice in question contains two photographs of the vehicle number plate which allegedly show the vehicle entering or leaving the petrol station. However, the images have been closely cropped, in no way confirm the alleged incident and simply have some dates and times printed underneath.

I invite ECP to produce evidence of the original time stamped images showing the vehicle entering and leaving.


3) No evidence of period parked

The PCN distinctly states that the vehicle was parked during the relevant period and POFA refers numerous times to the period of parking, specifically a Notice to Keeper must:
Paragraph 9 (2) (a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

By virtue of the nature of only entry and exit times being recorded, ECP are not able to definitively state this period of parking.


4) No authority to operate

BPA CoP:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). 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.

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

I put ECP to strict proof of both compliance with all of the above requirements and of the contract terms with the actual landowner (not a lessee who has no more title than the operator).
They do not own this petrol station and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that ECP is entitled to pursue these charges in their own right in the courts (which is a strict requirement within the BPA CoP). I suggest that ECP are not empowered by the landowner to sue customers and visitors in a free to enter petrol station and that issuing PCNs by post is no evidence of any right to actually pursue charges in court.


I contend that the contract -if this operator produces one- does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance, particularly points 7.3 b) & d).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 20 minutes in a petrol station.
I require ECP to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

Furthermore, multiple non-compliance with BPA CoP makes ECP’s authority with the landowner null and void under BPA CoP 7.1


5) Lack of signage/unclear signage/non-compliant signage under BPA CoP/no contract with driver

The entrance signage:
is not present at all on the Lea Valley Road entrance
is not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the petrol station from Sewardstone Road and is easily obscured by vehicles leaving the petrol station by this entrance/exit at the same moment
does not use suitable wording as defined in the BPA CoP Appendix B Entrance Signs which states “If one of the following standard wordings applies to your parking area you should use it”. The ‘Group 1’ phrase “20 minutes free parking” has been replaced by the phrase “Maximum stay 20 minutes”
is of insufficient size lettering for a car park immediately off a 30mph road, the key ‘Group 1’ capital letters being only 5.15cm high instead of 6cm as per BPA recommendations

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.

POFA states regarding onsite signage:
Paragraph 2 (3) (b) (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

However, the signs around the site
have a dark yellow background which not only blend with that of the Shell petrol station corporate scheme but are even more inconspicuous under the type of artificial lighting used at night time.
are not visible from a car before parking and the words are unreadable and incapable of forming a contract before the act of parking.
are inconsistent with at least one with a different 14 day discounted payment to that stated on the PCN

Due to the poor signage, there can be no consideration/acceptance and no contract agreed between the parties.


6) The ANPR system is neither reliable nor accurate

The ECP evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the petrol station in question.

Additionally, based on the evidence of the photographs, it cannot be discounted that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website; (link to be inserted)

'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

From the BPA CoP:
21.3 Parking companies are required to ensure ANPR equipment is maintained and is in correct working order.

I therefore require ECP to provide records with the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

In the case of ParkingEye v Fox-Jones on 8 Nov 2013, the case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photo images, I put ECP to strict proof to the contrary.

I suggest that in this case, a local camera took the image but a remote server added the time stamps. As the two are disconnected by the internet (with WIFI also introducing a delay through buffering), the camera and servers do not have a common time synchronisation system, there is therefore no proof that the time stamp appeded to the PCN is actually the exact time of the image.

Hence, without a synchronised time stamp, there is no evidence that the images produced are or can be stamped with an accurate time.

I respectfully request that this parking charge notice appeal be allowed and await your decision.

yours sincerely

HIRER

Thanks for your help in advance.

Coupon-mad

You should win on the basis of the non-compliant NTH, so that is good research, but always try the landowner complaint first, BEFORE POPLA, as I said on another thread you commented on:

Direct the complaint THIS WEEK to the retail park managers, usually easy to Google

Tank40

I took your advice about complaining and for some reason they mentioned Shell Gatwick North in their (presumably) copy & pasted reply. Had to laugh.:) Worth a try though. Pointed out in my 'thanks the reply' that they are probably in breach of their contract with you as they aren't following BPA CoP.

Tank40

Uploaded the POPLA appeal and ECP uploaded their reply three times for some reason.

Some things immediately leap out:
Their "confirmation" that I've been sent 'copies of all evidence in accordance with current POPLA requirements'. Do they mean the evidence they are now supplying at the POPLA appeal stage or for instance the documentation they neglected to enclose with the NTH? Confirmation being typed initials and a date.

They state: 'an official appeal representation was received on DATE where HIRER stated that no NTH had been issued.' I think this is the same as the hirer's grounds of appeal in that their PCN was not POFA compliant and therefore is not a NTH but not sure about this.

They go on: 'The PCN (NTK/NTO) has been checked by both the BPA and the IPC and we have confirmation that our PCN (NTK/NTO) has been approved as compliant with POFA'. They then say that Gladtones have told them the same thing.

They refer to the driver a lot, whereas they confirm the hirer has not named the driver.

Copy of hire documents is included in their reply; these were the docs not included with the NTH. They state later that these are the documents that prove the PCN was POFA compliant. Somehow.

There's a paragraph about how good their ANPR system is.

Two still images are included where it is assumed they obtained the cropped and photoshopped number plate images. There's a strip of numbers along the top which may or may not be original to the video stills which if they are, do resemble the alleged entry & exit times.

Part of what appears to be a contract, map of site with sign locations and several photographs of signs follow.

Would a redacted upload of their reply be useful to advisers here? Unsure about some other little things in it, mostly legal jargon and obviously want response correct.

Thanks all, still happy with how things have gone :beer:

Coupon-mad

Just show us the landowner authority, and photos of the SIGNAGE, I reckon.

The rest is pretty standard.

The_Deep

Up the pressure, get your MP on board.

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]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][/FONT]

Fruitcake

Go through each point and rebut them one at a time.
For any appeal points you made where no response has been given, you tell PoPLA that the scammers must therefore agree with that point therefore the appeal must be allowed.

You state that they did not supply the mandatory documents with the NTH so have failed the PoFA requirements. Producing something now that should have been produced earlier is an abuse of the appeal process.

If you have a copy of the contract, please show us. Does it have two authorised signatures from both landowner and scammer, or a director and witness from each side as per the requirements oof the Companies Act 2006?
The contract must be between the landowner and scammer, or between the scammer and a landowner agent along with a contract between the agent and landowner.
The contract must be with or flow from the landowner and must allow the scammer to issue charges and court claims in their own name.

Tank40

Fruitcake wrote: »

For any appeal points you made where no response has been given, you tell PoPLA that the scammers must therefore agree with that point therefore the appeal must be allowed.

I like the sound of that

Thanks everyone for all your help. Will just get Christmas out of the way unless I feel like a bit of legal recreation

KeithP

Tank40 wrote: »

Will just get Christmas out of the way unless I feel like a bit of legal recreation

That's fine, but remember that you only have six days to file your rebuttal.

Tank40

Three pages of the 'contract' were included in their reply:
imgur.com/NmRlO8A
imgur.com/xPpGTfv
imgur.com/iTaVcka

Several photos of signs were also included (incomplete links as I'm a new user):
Not sure of best way to share it safely, might have to make a load of images, they all seem standard ECP fare, however and BPA CoP non-compliance is already in my appeal.

Hope you can see these. Got some examples from the forum of wording. Not forgotten about it, will get it done in good time. Any suggestions appreciated of course.

Fruitcake

Tank40 wrote: »

Three pages of the 'contract' were included in their reply:
imgur.com/NmRlO8A
imgur.com/xPpGTfv
imgur.com/iTaVcka

Several photos of signs were also included (incomplete links as I'm a new user):
Not sure of best way to share it safely, might have to make a load of images, they all seem standard ECP fare, however and BPA CoP non-compliance is already in my appeal.

Hope you can see these. Got some examples from the forum of wording. Not forgotten about it, will get it done in good time. Any suggestions appreciated of course.

https://imgur.com/NmRlO8A
https://imgur.com/xPpGTfv
https://imgur.com/iTaVcka

Those images are very poor and very blurred. However, I see the contract fails the strict requirements of the Companies Act 2006.

"I note that the Act requires two authorised signatures from each party for the contract to be valid, or a director's signature and that of a witness from each party.

Only one signature from each company has been provided, and the position of each person within their company has not been given so it cannot be presumed either signatory is so authorised in accordance with the act.

Since the contract fails the requirements of the Companies Act it is not valid. I require proof to the contrary that a contract meeting the requirements of the aforementioned Act of Parliament exists that permits the claimant to issue charges in their own name, and to issue court claims in their own name."

Have a look at post 48 of this thread on how you can further expand on this point. Note that the signatories of the alleged contract are not authorised signatories as defined by the Act because they are neither company directors or company secretaries.

https://forums.moneysavingexpert.com/discussion/60270993