Euro car parks - POPLA appeal - overstayed time limit

W11

Hi all,

The Registered keeper received a PCN in the post from Euro car parks ((29/09/21)after the driver stayed 27 mins over the 2 hour limit despite paying £4 for 2hours. The registered keeper appealed (5/10/21) the initial PCN on the grounds that it only included an image of the vehicle reg leaving the car park but not entering. The appeal was rejected (3/11/21). Having looked up POPLA appeal templates on other threads I have written this:

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxx and I am appealing a parking charge from Euro car parks.

PCN: XXXX
POPLA verification code: XXXX

On the xxxxx, Euro Car Parks issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for ‘vehicle was parked longer that the maximum period allowed’

As the registered keeper I wish to refute these charges on the following grounds:
1) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
2) Euro car parks lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass

3) There is no evidence that the contravention occurred

4) No keeper liability

5) No driver liability


1) The operator has not shown that the individual who it is pursuing is in fact 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. Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant 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 charge cannot be enforced against a keeper without a POFA-compliant NTK. The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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. 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.''No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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) Euro car parks lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that Euro car parks does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Euro car parks be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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) There is no evidence that the contravention occurred

The parking charge notice in question contains one photograph of the vehicle number plate. An image is not shown for entry only exit. The image does not clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all). See attached image

The time and date stamp has been inserted into the letter underneath (but not part of) the photographs. The image have also been cropped to only display the number plate. As this is not an original image, I require Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

4) No Keeper Liability

The Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park.
These times do not equate to any single evidenced period of parking. There is no evidence of a single period of parking and this cannot reasonably be assumed on the balance of probabilities, from two photos of a car in moving traffic, timed hours apart.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;

“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

You cannot discount that the driver may have driven in and out on two separate occasions. There is ample evidence in the public domain that ANPR timings can mask other ordinary circumstances, such as two visits ('double dip', a well known phenomenon).

Here are just three examples of BPA member ANPR evidence failures, including a court loss and an ICO investigation:

parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html

parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

parking-prankster.blogspot.co.uk/2015/10/parkingeye-subject-to-data-protection.html

This 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in the following article:

britishparking.co.uk/Other-Advice#4

As with all new technology, there are issues associated with its use:
''Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

The BPA even mention this as an inherent problem with ANPR on their website;

The BPA's view is: '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...'

POFA 2012, paragraph 9(3) states;

“The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)”

If the ANPR system has picked up two separate occasions then it would fail on the above ruling as two separate PCNs should be issued, assuming the vehicle in question had breached the contract terms, and not just the one that was sent to the Keepers address. I put the operator to strict proof that there was only one period of parking, because this is a mandatory requirement for keeper liability also stated clearly in Schedule 4.

Consequently, Euro Car Parks has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If Euro Car Parks should try to suggest that there is any method without the prescribed statute (POFA 2012) whereby a registered 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 registered 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, of course, still not be lawfully able to be held liable, under Schedule 4:

transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

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.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (b) has given a notice to keeper in accordance with paragraph 9.''

The operator has failed to meet the second condition for keeper liability due to the flaws in the NTK. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012.

This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report:

''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

(continued in replies)

W11

5) No Driver Liability

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

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 appellant 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.''

I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.

 

In summary, these points demonstrate the claim by Euro car parks is invalid and should the claim continue, further action and evidence requested in this appeal is required from Euro car parks.

 ........

I have not included signage issues as there were clear signs when the driver paid to park at the machine.

Thank you, W11

KeithP

I have not included signage issues as there were clear signs when the driver paid to park at the machine.

If there were clear signs, why did the driver overstay?

I'm not trying to be clever here, but instead suggesting that you really should include the issue of poor signage and confirm that it was so poor that it failed to get the 'time limit' message across to the driver.

Coupon-mad

Are you saying this was a non POFA PCN, rare for ECP and that scan shows a POFA document, so they are pursuing keeper liability.

You are throwing some irrelevant points into that appeal and an overstay allegation is hard to win. What did the landowner say (sorry if I missed that in your post).

W11

KeithP said:

I have not included signage issues as there were clear signs when the driver paid to park at the machine.

If there were clear signs, why did the driver overstay?

I'm not trying to be clever here, but instead suggesting that you really should include the issue of poor signage and confirm that it was so poor that it failed to get the 'time limit' message across to the driver.

Hi, there were delays where I went, so I ended up taking longer than I'd thought unfortunately. I guess it's worth putting it in, especially as there was no clear mention of a grace period. thank you!

W11

Coupon-mad said:

Are you saying this was a non POFA PCN, rare for ECP and that scan shows a POFA document, so they are pursuing keeper liability.

You are throwing some irrelevant points into that appeal and an overstay allegation is hard to win. What did the landowner say (sorry if I missed that in your post).

Hi, sorry no, I just made the appeal from putting a few I've seen together. They are pursuing keeper liability. Should I then exclude anything referring to POFA 2012?
I haven't contacted them as it was a supermarket carpark, but I didn't go to the supermarket (they give refunds on parking tickets if you do go). 
My main point is the lack of photographic evidence as shown in the OP, missing the number plate on entry. Is there anything I can do about this?
Thanks

Coupon-mad

You should exclude the POFA stuff and work out what your actual point of appeal is, if anything.  Can't see this makes much difference:

the initial PCN on the grounds that it only included an image of the vehicle reg leaving the car park but not entering.

Look up the PCN online as if you were going to pay.  They will have an enhanced image, or can provide one.

W11

Coupon-mad said:

You should exclude the POFA stuff and work out what your actual point of appeal is, if anything.  Can't see this makes much difference:

the initial PCN on the grounds that it only included an image of the vehicle reg leaving the car park but not entering.

Look up the PCN online as if you were going to pay.  They will have an enhanced image, or can provide one.

I just tried this, but there is no way to view the evidence, only to pay by card or cheque. If I appeal surely they will then provide one? or is there a way to request it before appealing? thank you

Redx

Evidence pack from ECP will be provided to Popla , if they proceed to reFute your appeal , so not before

Grace periods are defined in the BPA CoP version 8 dated January 2020 , clause 13 , which they all should comply with

At the moment I have no idea what grounds you are appealing on , so popla won't either

You need to win on a technicality , like no landowner authority or poor and inadequate signage , or a breach of the BPA CoP

Coupon-mad

When you click to pay by card these websites usually show the evidence.

W11

Redx said:

Evidence pack from ECP will be provided to Popla , if they proceed to reFute your appeal , so not before

Grace periods are defined in the BPA CoP version 8 dated January 2020 , clause 13 , which they all should comply with

At the moment I have no idea what grounds you are appealing on , so popla won't either

You need to win on a technicality , like no landowner authority or poor and inadequate signage , or a breach of the BPA CoP

I'm appealing based on the fact that they don't have proof of me entering the car park only leaving. I'm trying to find out about landowner authority.