Euro Car Parks knuckleheads

Izzycat13

Fruitcake, thanks, going away for a good tweak!

Izzycat13

Draft Popla template, help please, is this ok thanks?

Dear POPLA Adjudicator,

Subject: Parking charge reference number: ----------.

Vehicle Registration: -------. 

 I am appealing a parking charge from Eurocarparks on the following points: 

1. Frustration of contract; that with repeated attempts, the PDT rendered the contract impossible to perform by being unable to result the obligation to pay.

 2. No evidence to show that the APNR/PDT system is reliable nor accurate. 

3. Inadequate signage.

 4. The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established. 

5.The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

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

The details on above points are as listed below: 

1. Frustration of contract.

I put Eurocarparks to strict proof that their PDT system is not fundamentally at fault because of known issues such as missing checks and maintenance of the machine and the possibility of malfunction, not a vague statement to deny my appeal by saying: ‘there not being any reports of an error on the day.

Eurocarparks have refused a PDT machine audit record from that day, of payments made and of finding PROOF that the VRN was entered multiple times, contactless payment was attempted and there is a cash payment over the recommended notice period fee entered into the PDT at the exact time in question for the specific vehicle in question. 

I have requested Eurocarparks simply check that PDT machine record from that day, the above statements will be found to be of fact. Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure equipment is maintained and is in correct working order. 

The keeper has recieved a notice to keeper letter to which they have appealed the above which is a statement of events, which a simple check of their records will confirm. 

Eurocarparks have on their site and in correspondence that they are an Approved ‘Member of the BPA’. According to your ACOP: this includes treating drivers fairly.

 A transaction between the vehicle parked and the car park operator come under the laws of contract.

The owner has met in full the contractual obligation, Eurocarparks, is guilty of breaching a duty of mutual trust and confidence by attempting to levy additional amounts with threats. 

2. No evidence to show that the APNR/PDT system is neither reliable nor accurate. 

On 27/12/2020, at 12:48, The PDT on this site totally refused to accept card payment, frustrated at my attempts to use contactless, I entered the vehicles registration multiple times again and entered a total of £4 in coins, more than double the recommended payment, the only response from the PDT was that it acknowledged only a single 50p entered.

With cameras and computers on this site, logging vehicle details, a simple check of their PDT will confirm that on this exact date and at those exact times from their computer records; multiple vehicle registration entries were entered and at that exact time, a total of £4 was deposited. I took the unusual step of photographing the machine at the exact time to show frustration of contract, see attached.

3. Inadequate signage.

The signs in this car park are not prominent, clear or legible from all parking spaces 

I note that within the Protection of Freedoms Act (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. POFA 2012 defines '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 assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 19 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the lighter font style of the parking charge, which is illegible in the photograph supplied by the operator and does not appear at all at the entrance, it actually faces away from it - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist. 

4. The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established. 

The PCN sent to me by Eurocarparks was delivered by post using ANPR and a subsequent request to the DVLA for Registered Keeper details. No notice was given at the time of the alleged contravention. As such, the notice should conform to Schedule 4 of the Protection of Freedoms Act 2012. I would draw particular notice to paragraph 9 (2 (f)) (2)The notice must— (f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; 

 The notice from Eurocarparks Ltd does not meet this requirement by stating what action will be applicable if the creditor does not know the name and address of the driver. The notice also does not state the period of parking in the car park. The time that a vehicle is in the car park between the time of the entry and exit photographs will rarely correlate with a time period of being parked. It is entirely feasible that a driver may spend significant time loading/unloading, helping with assisted boarding/alighting and/or locating a parking space. 

In this instance, the PDT failure to acknowledge the contactless payment, resulted in the keeper returning to that car to search for coins to enter into the machine manually, thus resulting in a few minutes wasted and thus going over the 50p hour which the PDT actually recognised. Frustration of contract lies with Eurocarparks.

 In order to rely upon POFA to hold a vehicle's keeper liable for unpaid parking charges, an operator must deliver a Notice to Keeper that fully complies with all of POFA’s strict requirements. I set out below a non-exhaustive list of reasons why Eurocarparks Notice to Keeper failed to do so. 

Contrary to the requirements of Sch.4 Para 9 (2) (e), the Notice to Keeper did not state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: (i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver. 

Eurocarparks insinuates that they do not know the name or address of the driver through their request to the keeper to part with that information in a letter dated 01/01/2021:

5.  The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
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.
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.''

 

6. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
The onsite signage indicates that Euro Car Parks are managing the site “on behalf of the Landlord”.
The BPA code of Practice states:7 Written authorisation of the landowner
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.

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance.

I reiterate, Eurocarparks have refused a PDT machine audit record from that day, of payments made and of finding PROOF that the VRN was entered multiple times, contactless payment was attempted and there is a cash payment over the recommended notice period fee entered into the PDT at the exact time for the specific vehicle in question. 

 

Yours sincerely ---------

1505grandad

Check the name of the  ppc on the docs in front of you.

As no mention of more than one occupier(s) in the vehicle I would suggest the following outs the driver:-

"In this instance, the PDT failure to acknowledge the contactless payment, resulted in the keeper returning to that car to search for coins to enter into the machine manually, thus resulting in a few minutes wasted and thus going over the 50p hour which the PDT actually recognised."

brianposter

The title to para 2 probably means the opposite of what you intend it to mean. And elsewhere in that para, it should be "more than double the appropriate payment".

Izzycat13

Thank-you!

Izzycat13

These Eurocarparks cowboy saga is going to drag out a bit longer :-(

We have adjourned your appeal

Thank you for raising your appeal with POPLA.

POPLA understands that during the COVID-19 pandemic, it is going to be difficult or impossible for motorists and operators to effectively appeal. In the interests of fairness, we have decided to adjourn all appeals received 28 November onwards in addition to some appeals received shortly before this time. Adjournment means that appeals will be put on hold and we will take no action until things return to normal. It also means operators are not allowed to chase payment while this appeal is registered with POPLA.

We have placed your appeal on hold. When we start considering appeals again, we will write to affected parties and let them know what steps we need them to take, if any, to ensure everyone gets a fair opportunity to put their case forward.

Please check our website and your inbox regularly for more information and updates.

Kind regards

POPLA Team

D_P_Dance

They must be sitting on hundreds, perhaps thousands,  of appeals.  Expect  some daft decisions when they start up again.  

nosferatu1001

It'll be WHOPLA all over again

Izzycat13

Thanks for the comments.
Popla have sent me case papers, I have 7 days to provide comments. In summary, I was under the hour, payment was only 90p which i was happy to pay: the ticket machine took a total £4 of my coins, only acknowleging one 50p, frustrated; I took the time to take a photo of the display to show this. The walk to my car to find more change and back to try again took me a couple of minutes over the hour. My protestations with EurocarParks were fruitless, they would not check their machine for additional monies entered.  Popla have sent me a document with EurocarParks clearly experienced in demanding false monies. I paid £4 on that day, they demand £100 now !!!!!!?
It reads:

1. Case Summary and Rule/Conditions

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 ##### was issued to vehicle ####### at the Euro Car Parks site atRodney Street - Wigan for breach of terms and conditions: No valid pay and display/permit was purchased.

Rodney Street - Wigan car park operates an ANPR + P&D/Pay by Phone camera controlled operation.An official appeal representation was received on the 08 January 2021 where Mr ########

stated that payment machine was not functioning properly, he paid for his parking.Euro Car Parks then responded:

Mr ####### then appealed the PCN and did not confirm nor did he dispute that he was the driver on the day in question. Therefore, the liability for the notice remains with MR###### the registered keeper.

Our PCN (Parking Charge Notice) is the first communication with the registered keeper – this is referred to as the Notice to Keeper or Notice to Owner

The PCN (NTK/NTO) has been checked by both the BPA and the IPC and we have confirmation that our PCN (NTK/NTO) and has been approved as compliant with POFA

The PCN (NTK/NTO) has been checked by Gladstones Solicitors who specialise in assisting private car park operators – legal advice and pre legal advice with regards signage and adhering to POFA and both code of practice

Please be advised once the registered keeper has been sent the PCN (NTK/NTO) if there is no response, payment, appeal, serviceable address of the driver – ECP process a Notice To Keeper – thisis a “reminder letter” and sent in reference to the PCN (NTK/NTO) that has not been responded to.

If we are in receipt of a serviceable address of the driver – the PCN (NTK/NTO) is re-issued

If the registered keeper is in receipt of the PCN (NTK/NTO) and has passed to the driver and the driver appeals – we will respond to the appeal strictly following the code and ensure any/all communication is sent to the driver (we would not at this stage re-issue the PCN)

We have been advised that the above is standard practice for all private car park operators in regards to PCN (NTK/NTO) issued on Automatic Number Plate Recognition car parks

Driver :

Reason For Appeal: I have just received a 'Notice to keeper' letter.
I am in Wigan frequently and always use this car park, and never have any problems using it apart from the date of 27/12/20.
On the date 27/12/20 I returned to my car, entered my details in proper good faith as usual and put a £2 coin into the slot then pressed the green button.
The machine did not respond, no ticket came out.

I tried again using the contactless method, but the machine would not respond.

I tried again, this time entering 4 x 50p coins, the machine acknowledged ONE 50p coin and refused to dispense any ticket.
I use this machine regular and have never found it problematic, on 27th, I entered £4 in total, the only display i saw is that 50p was entered, no proof.

Check your machines money total on that day, you will find that the above is 100% factually correct, unlike the machine functionality on that day.
I took pictures of this frustrating episode which are attached, may i also draw to your attention that the times on your notice also do not match the timing displayed on this machine, I took picture A at 12:51:49, a couple of minutes before my exit as per your Notice at 12:52:59, the machines display indicates a clock display of 12:52 and the payment display screen a totally incorrect 13:21?

I paid all parking charges as per my visit, frustratingly too much, a fact that you owe me the balance of my parking payment, I overpaid because this machine on 27/12/20 was not working.

I do not take pictures of parking payment machines, but on this frustrating day, I did so, to prove this machine was not functioning properly.
Attached photographs.

I am the Registered Keeper

08/01/2021 13:31

. ECP response to POPLA appeal logged by Mr #####

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 ####### was issued to vehicle ####### for breach of terms and conditions:No valid pay and display/permit was purchased at Rodney Street - Wigan. This car park operates anANPR + 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: Mr ####### pointed at:

•   Frustration of contract

•   No evidence to show that the APNR/PDT system is reliable nor accurate

•   Inadequate signage

•   The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms

•   Act 2012 (POFA) and as such no keeper liability can be established.

•   The operator has not shown that the individual who it is pursuing is in fact the

•   driver who was liable for the charge

•   No Evidence of Landowner Authority - the operator is put to strict proof of full

•   compliance with the BPA Code of Practice.

  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 tosee, read and understand.

•   Signage on site is clear, when parking on private land it is the driver’s responsibility toread 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 1 hour and 5 minutes (Figure 1)

•   Signage is visible when entering and inside of the car park and when entering privateland 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######:

  
  

  •   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.

  •   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 topay 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 micro- processor 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 sourceand 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 officeenvironment, 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 timedifference between that tagged on the raw capture and the ‘real time’ of the servers is againtested.

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

    
    

    There are 16 pictures attached to the letter taken on a fine sunny day of the signage and location. 

    Above there is a screenshot of 'transaction of payments', they clearly have not checked their tally for that day which will prove my account. This car park it's very close to where I briefly visit once a week, I did pay and entered a lot more than necessary. 

    This is so wrong, any idea what I do now or am I screwed by these cowboys?

    
    

    Thanks

Umkomaas

You will have to rebut anything and everything in their evidence that is incorrect or which contradicts what you have said in your appeal. You have only 2,000 characters (not words), in which to do so, and every space and punctuation mark counts as a character.  So you're going to have to be focused in getting your position over, use bullet points rather than 'leggy sentences'. 

You cannot add any evidence that you haven't already included in your original POPLA appeal, neither can you add any new appeal point. Their 7-day deadline is immutable, and if you check the actual deadline they've given, you'll find that it's more like only 5 or 6 days from the time you received their communication.