ECP DCB Legal default CCJ - Claims form not received, seems to be CNBC error

Birkum

Dear members, I got a PCN from Euro car park and I appealed but it was rejected. I had parked on a Sunday for about 20 minutes. This car park is at the back of a Poundland and was always free for Poundland customers.  About 6 months back Poundland moved to the other side of the road that I was not aware of. I parked the car, went to the Poundland that has moved to the other side of the road, came back, and took my car out. Got a PNC after 6-7 days. I appealed to Euro car park mentioning the following:
1. I had used it a few times before when I occasionally came to Poundland and was not aware it is Euro Car park now
2. It had snowed a couple of days before, snow was still all around,  there were just a couple of cars and I did not realise  its a paid car park
3. There was absolutely no car parking bay/lines anywhere in the car park, and no white lines were seen any where in the entire area, so I never got the impression that its a paid car park
4. On a Sunday every car park in my area is free. In fact, there is a council car park just 5-10 meters away from this place. I had no intention of evading a parking charge, otherwise, I could have easily parked in the council car park

Also, it looks like Euro car Park has moved out of this place. I went to check today and don't see any Euro car park Sign. 

My Appeal is rejected by Euro car park and they have asked me either to pay or to appeal to POPLA (they have given a verification code).

Kindly suggest what should be my next steps. Should I just pay or appeal further please?

Thank you so much for your help in advance.

Kind regards,
BS

Coupon-mad

Take photos this weekend, evidencing "no signage at all" and embed the metadata into the images (using a free photo date printer app). 

Put those photos into your word doc (which you will later save as a PDF - see third post of the NEWBIES thread) POPLA appeal section about the fact that there appear to be no signs at all.

Add that if there were signs up on the material date they were not seen and you need to see ECP's evidence.  Such signs not only having to meet the Beavis case high bar of clarity and boldness of the £100 parking 'penalty' but also to meet the BPA CoP in two ways:

(a) mandatory entrance signs rules;

(b) additional signage being mandatory where the rules or regime in a car park change.  This used to be a free Poundland car park, last used during Autumn 2022 by the appellant's family and nothing had changed, so why no additional prominent signage to alert local drivers that it was suddenly no longer Poundland's car park and different rules applied/ANPR was being used?

Say all that as your first point.

Then obviously the other templates as seen in the POPLA section of the NEWBIES thread.

Birkum

Coupon-mad said:

Take photos this weekend, evidencing "no signage at all" and embed the metadata into the images (using a free photo date printer app). 

(b) additional signage being mandatory where the rules or regime in a car park change.  This used to be a free Poundland car park, last used during Autumn 2022 by the appellant's family and nothing had changed, so why no additional prominent signage to alert local drivers that it was suddenly no longer Poundland's car park and different rules applied/ANPR was being used?

Say all that as your first point.

Then obviously the other templates as seen in the POPLA section of the NEWBIES thread.

Thank you for your inputs, this greatly helps. Just to clarify, there was a Euro Car Park board at the right of the entrance. As the day was gloomy with snow around, also my own thought that it was a Poundland car park plus the fact that on Sundays all the council car parks are free (there is one just 5-10 meters away), It seems they had two machines at the very end that was difficult to spot plus in the entire parking there were no bay separators at all so it was like a big black road with no marking or white lines to park car. Genuinely plus there were hardly 4-5 cars covered with snow, From all this I never thought its a paid car park.

Hope this gives a better perspective. As mentioned I will start with point b from your message. 

Thanks again for the help.

Kind regards,
B 

Birkum

Attaching the photo received from Euro Park, I had gone back to the parking after receiving the PCN to see why I never realised its a paid car park. The three images with cars will give an idea that there are no floor white lines etc at all. As suggested, I will go back today/tomorrow to take more pictures. But based on my memory from few days ago it appears that Euro Park has moved out from that place as there was no signs and the entire area looked like a new builder site. Anyway I will go and check as
 suggested. Thank you so much.

Umkomaas

If you read the last 10 pages or so of the POPLA Decisions Announcement (always pinned near the top of the forum thread index) you will see POPLA finding against ECP on the basis of the £100 parking charge being insufficiently prominent. Get the gist of those, then construct your POPLA appeal with emphasis on signage and lack of prominence of the charge, ParkingEye v Beavis being one of your reference points. 

Birkum

Dear members, based on your suggestions and wider reading from the suggested thread, I have created the appeal below. One challenge I faced is the Car Park is no longer operational and the site is a full fledged builders site hence Euro Car Park has removed all signs etc. Please review and let me know your feedback. I will be grateful to you for that.

POPLA Verification Code: XXXXXXX

Vehicle Registration: XXXXXX 

I, the registered keeper of this vehicle, received a letter dated 16/12/2022 acting as a notice to the registered keeper. The letter mentions that I used Euro Car parking from 14:59:59 till 15:24:13, on Sunday the 11/12/2022.  My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 29/12/2022 and rejected via an email dated 25/01/2022. I contend that, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following ground: 

The entrance signs are inadequately positioned and lit and 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 

There are 6-7 council owned car parks in around 150-200 meters distance from this car park,  the closest just 10 meter away. All other car parks are free on a Sunday and Bank Holiday. Without a sign to see I could not understand that I needed to buy a parking ticket. I want to state that in this case, 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 proportion. The date of the event in question is Sunday 11/12/2022 and the time of the entry is 14:59:59, at this time the parking was not lit and it was very gloomy, in addition it had unexpectedly snowed couple of days before and at the time I entered the parking, the parking was covered with snow, there were no bay parking lines marked to park cars in the entire car park, let alone sign for parking charges. There were just couple of cars parked in the car park partly covered with snow.  I neither saw any sign to pay parking charges nor was any pay machine visible from where I parked my car.   

Post receiving the parking charge I went back to the parking site to check why I missed the sign. I am including few photographs and you will realise that the sign is in a wrong place and very difficult to see.  Please bear in mind, the event in question, I had driven on a day that had snow all over and it was getting dark. The sign is placed on the right of the entrance and there is very narrow parking space on that side, enough for just one row of cars which is very disproportionate to the left side of the park that can have multiple rows. That day I took my car to the left side and that side the space just opens up and is very big (Picture 1 and Picture 2).

    Picture 1

As you can see from picture , it is one way road and I came from the side the black car is parked, The sign is on the right side which is extreme narrow part of the car park. The picture 2 below show how big the car park actually on the left is. Apologies for this picture, I went after a week to take more picture and the whole car park has turned into a builders side but you can still get good idea of how big the area on the left is.

Picture 2

As seen in picture 2, most of the parking is on the left and there was no sign in this area at all. 

Another important aspect is the entrance of this car park, as mentioned above it is from one way and there is a brick wall just before this parking as seen in picture 3 below that obstructs the view to the right while entering this parking, as the sign is just placed on the right, it is very difficult to notice it.

 Picture 3

Again this picture is taken when I visited it last and it appears Euro Car Park has moved out from here and there is no sign left. However from picture 1 you can see where the sign actually is. Now Please look at this Picture 3, coming from the one way side (South side) of the road there is a big brick wall to the right that obstructs the view to the right. 

In fact the whole area does not even look like a parking as there is no marking at all including any bay parking lines. It can be clearly seen from Picture 4 and Picture 5 below. These 2 pictures were taken just after receiving the notice and the car park was still operational and the builder work had not started.

     Picture 4


     Picture 5

You can clearly see from Picture 4 and picture 5 that there are no bay line or any other sign in this part of the car park. 

From these pictures it is very clear that the sign was wrongly positioned, also there was lack of signs and the sign was obscured and hidden. As the site is like a builder’s site now the operator seems to have removed all the signs hence I can not take any more photographs to show more details. 

The image of the sign sent to me by Euro Car Park, which was not placed at a place visible to me, was their main car park sign on the River Walk Car Park – Tonbridge and it was inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read as seen in the Picture 6 below.

   Picture 6

On a gloomy day with a wall just before the entrance and sign positioned in a wrong place and area not well lit, it is very difficult to read the sign.

Coupon-mad

Remove this horrible intro someone wrote ages ago that is full of unnecessary detail and is badly expressed:

"I, the registered keeper of this vehicle, received a letter dated 16/12/2022 acting as a notice to the registered keeper. The letter mentions that I used Euro Car parking from 14:59:59 till 15:24:13, on Sunday the 11/12/2022.  My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 29/12/2022 and rejected via an email dated 25/01/2022. I contend that, as the keeper,"


You also need the other usual points as already shown in the 3rd post of the NEWBIES thread.

Birkum

Coupon-mad said:

Remove this horrible intro someone wrote ages ago that is full of unnecessary detail and is badly expressed:

"I, the registered keeper of this vehicle, received a letter dated 16/12/2022 acting as a notice to the registered keeper. The letter mentions that I used Euro Car parking from 14:59:59 till 15:24:13, on Sunday the 11/12/2022.  My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 29/12/2022 and rejected via an email dated 25/01/2022. I contend that, as the keeper,"


You also need the other usual points as already shown in the 3rd post of the NEWBIES thread.

Thank you so much Coupon-mad. I will update vbased on your feedback and send for review. 

Birkum

Coupon-mad said:

Remove this horrible intro someone wrote ages ago that is full of unnecessary detail and is badly expressed:

"I, the registered keeper of this vehicle, received a letter dated 16/12/2022 acting as a notice to the registered keeper. The letter mentions that I used Euro Car parking from 14:59:59 till 15:24:13, on Sunday the 11/12/2022.  My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 29/12/2022 and rejected via an email dated 25/01/2022. I contend that, as the keeper,"


You also need the other usual points as already shown in the 3rd post of the NEWBIES thread.

Hi Coupon-mad, I tried looking into the thread but not completely sure which one you are suggesting me to follow. Is it the one that says, 

And here is a perfect, illustrated appeal which won when arguing about BPA Grace Periods:

https://forums.moneysavingexpert.com/discussion/comment/73797736#Comment_73797736

This is in the 3rd thread newbie section under the POPLA appeal. Appreciate your confirmation on this please.

Thanks a ton

Birkum

Dear all, I have read quite a few threads in the past two days and also the suggestions given by Coupon-mad. The appeal details is copied below. I will create a pdf and then submit on POPLA website post your final review. I plan to submit this tomorrow.

Dear POPLA officer,

Euro Car Park Ref Number:

Regarding POPLA Verification Code:

Vehicle Registration: 

On 16 December 2022 Euro car parks issued a parking charge notice highlighting that the vehicle XXXXXXX had been recorded via their automatic number plate recognition system for the following alleged contravention: “No valid pay and display/permit was purchased”. 

As the registered keeper I wish to refute these charges on the following grounds: 

1.    The entrance signs are inadequately positioned and lit and the signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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

3.    No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

4.    Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

5.    The ANPR System is Neither Reliable nor Accurate

6.    The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

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

 

 

1.            The entrance signs are inadequately positioned and lit and 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 day of this incident was a Sunday and it had unexpectedly snowed heavily just 2 days before and the area was still covered with snow, around the time of the incident the weather was gloomy with the fading light. There are 6-7 car parking within 10 meters to 200-meter of distance from this parking, the closest being the one just 10 meters away,  and all of them are owned by the council and free on a Sunday. Due to the lack of signs and bad positioning of signs, there was no opportunity to know that this is paid parking on a Sunday. 

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: 

http://imgur.com/a/AkMCN 

 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 River Walk Car Park -Tonbridge (the only one in the car park displaying terms and conditions) 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 

There are 6-7 council owned car parks in around 150-200 meters distance from this car park,the closest just 10 meter away. All other car parks are free on a Sunday and Bank Holiday. Without a sign to see it is impossible for the driver to understand that a parking ticket needs to be bought. I want to state that in this case, 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 proportion. The date of the event in question is Sunday 11/12/2022 and the time of the entry is 14:59:59, at this time the parking was not lit and it was very gloomy, in addition it had unexpectedly snowed couple of days before and at the time the driver entered the parking, the parking was covered with snow, there were no bay parking lines marked to park cars in the entire car park, let alone sign for parking charges. Also on the day there were just couple of cars parked in the car park partly covered with snow.  The driver neither saw any sign to pay parking charges nor was any pay machine visible from where the car was parked.   

Post receiving the parking notice I went to the parking site to check why the sign was missed. I am including a few photographs and you will realise that the sign is in the wrong place and very difficult to see.  Please bear in mind, the event in question was a day that had snow all over and it was getting dark. The sign is placed on the right of the entrance and there is a very narrow parking space on that side, enough for just one row of cars which is very disproportionate to the left side of the park which can have multiple rows. That day the car was driven to the left side and on that side, the space just opens up and is very big (Figure 3 and Figure 4), there was no sign visible from that side.

 

                                  Figure 3

 

As you can see from the picture above, it is a one-way road and to come into the car park the drivers need to come from the side the  the black car is seen on the road, The sign is on the right side which is narrow part of the car park. Figure 4 below shows how big the car park actually on the left is. Apologies for this picture, I went after a week to take more pictures and found the entire car park has turned into a builder’s site with no sign of Euro car park there but you can still get a good idea of how big the area on the left is.

 

                Figure 4

 

As seen in Figure 4, most of the parking is on the left and there was no sign in this area at all. 

Another important aspect is the entrance of this car park, as mentioned above it is from one way and there is a brick wall just before this parking as seen in Figure 5 below that obstructs the view to the right while entering this parking, as the sign is just placed on the right, it is very difficult to notice it.

 

       Figure 5

 

Again this picture is taken when I visited it last and it appears Euro Car Park has moved out from here and there is no sign left. However, from Figure 3 you can see where the sign actually is. As seen from this picture coming from the oneway side (South side) of the road there is a big brick wall to the right that obstructs the view to the right. This picture shows both the brick wall and also shows how big the parking on the left is which has no sign at all.

In fact, the entire parking area does not even look like parking as there is no marking at all including any bay parking lines. It can be clearly seen in Figure 6 and Figure 7 below. These 2 pictures were taken just after receiving the parking notice and the car park was still operational and the builder work had not started so these two pictures exactly shown how the markings in the car park was..

 

 

             Figure 6

 

Figure 7

 

You can clearly see from Figure 6 and Figure 7 that there are no bay lines or any other sign in this part of the car park. 

From these pictures it is very clear that the sign was wrongly positioned, also there was a lack of signs and the sign was obscured and hidden. BPA should not allow a car park to run without any parking lines (bay lines). As the site is like a builder’s site now the operator seems to have removed all the signs hence I can not take any more photographs to show more details. 

On a gloomy day with a wall just before the entrance and sign positioned in the wrong place and an area, not well-lit, it was impossible to notice and read the sign. 

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 a 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 Code of Practice), 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 the template private parking terms and sums have been known not to match the actual landowner agreement). 

Paragraph 7 of the BPA Code of Practice 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. 

Looking at the current status of car park, it appears the operator has moved out as the site looks like a construction site, which must be known to the operator hence they did not invest in doing the basic thing like getting the parking lines done in the car park.  

Birkum

3. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements 

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. 

Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: 

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

Euro Car Parks’ NtK simply claims “the vehicle was parked at River Walk Car Park - Tonbridge.” 

The NtK separately states that the vehicle “entered River Walk Car Park - Tonbridge at 14:59:59 and departed at 15:24:13”. At no stage do Euro Car Parks explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012. 

In fact the photo in the NtK does not even show the vehicle registration number on exit time. It is all black and the registration number is barely readable. 

Euro Car Parks NtK states “we are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay”. It is not in the gift of Euro Car Parks to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. 

By virtue of the nature of an ANPR system recording only entry and exit times, Euro Car Parks are not able to definitively state the period of parking. 

I require Euro Car Parks to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK. 

4.               Vehicle Images contained in PCN: BPA Code of Practice – non-compliance 

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 24

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." 

The PCN in question contains one close-up image of the vehicle number plate. The second image that notes the exit time does not even show the registration number of the car. Neither of these images contains a date and time stamp “on the photograph” nor do they 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). 

The time and date stamp has been inserted into the letter underneath (but not part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, 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. 

5.               The ANPR System is Neither Reliable nor Accurate 

The Euro Car Parks Notice to Keeper (NtK) shows no parking time, merely two images, one with the number plate and second without any number,  corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. 

The Notice to Keeper states: 

“On 11/12/2022 the vehicle: XXXXXX entered River Walk Car Park – Tonbridge, at 14:59:59 and departed at 15:24:13 on 11/12/2022.” 

These times do not equate to any single evidenced period of parking. By Euro Car Parks own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed. 

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.” 

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order. 

I require ECP to provide records with the location of the cameras used in this instance, together with 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. 

As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on images of the vehicle number plate allegedly entering and leaving the car park at specific times, it is vital that ECP produces the evidence requested in the previous paragraph. 

 

6.            The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for 

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras. 

Paragraph 21.1 of the BPA Code of Practice 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 Code of Practice 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 this car park signage failed to accurately explain 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. 

The Euro Car Parks’ main sign in the River Walk Road car park (see Figure 2) states:

“We are using automatic number plate recognition and/or handheld cameras to capture images of vehicle number plates to monitor and enforce the above term and conditions.” 

Specifically missing from this sentence is the vital information that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices. The Euro Car Parks’ sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states (see Figure 2): 

“Failure to comply with the terms and conditions will result in the issue of a £100 parking charge notice (60 if paid within 14 days of issue).” 

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 because the operator 'fails to identify its commercial intent': 

http://www.legislation.gov.uk/uksi/2008/1277/contents/made 

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. 

 

7.            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. 

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.'' 

 

Your sincerely

XXXXXXXX

Registered Keeper (XXXX)