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Eurocarpark - Disabled Badge - POPLA Appeal

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  • Kazaa
    Kazaa Posts: 80 Forumite
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    @1505grandad

    Yes it was a windscreen ticket to start off with so is the comment made by @B789 valid?

  • Coupon-mad
    Coupon-mad Posts: 131,404 Forumite
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    edited 2 October 2023 at 9:47PM
    That Ntk is missing some POFA paragraph 8 wording so as long as you only appealed as the keeper, that wins it.

    All except this as there never was anything set by paragraph 10.  It's a nullity. 
    (7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10
    We already discussed (above) that it's non-POFA In wording, so the date is irrelevant.  'Non-POFA' wording means there can be no keeper liability anyway.
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  • Kazaa
    Kazaa Posts: 80 Forumite
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    Ok i have now finished my POPLA appeal and main points will be points 1 and 2. Please let me know your thoughts and if all good i can go ahead and submit.

    Thanks


    Appeal re POPLA Code:  v Euro Car Parks Ltd

    Vehicle Registration: 

    POPLA ref: 

    I, the registered keeper of this vehicle, received a letter dated  active as a notice to the registered keeper. My appeal to the operator – Euro Car Parks Ltd – was submitted and acknowledged but subsequently rejected by a letter dated . I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

    1) The Notice to Keeper does not comply with sub-paragraph 8 point 2 (e & g) and therefore is not POFA compliant

    2) Permission to park – Failure to Comply with BPA

    3) Authority to Issue Tickets – No Evidence of Landowner Authority

    4) No legitimate interest in enforcing a charge

    5) EuroCarPark Signage – Non compliance BPA

    6) No Planning Permission from Essex County Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

     

     1)  The Notice to Keeper does not comply with sub-paragraph 8 point 2 (e & g) and therefore is not POFA compliant

    Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12. EuroCarParks Ltd have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 8, which stipulates a mandatory process if driver is not identified as follows:-

    “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;

    g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

    The NTK was sent to me without giving me the opportunity to identify the driver and current address for the driver. Moreover there was no discount offered there making the notice not in compliance with POFA.

    2) Permission to park - Failure to Comply with BPA

    I believe on the day when I entered my VRN into the keypad either the signal to the keypad failed or that there may have been a genuine VRM keying error. The notice received stated a disabled badge was not displayed, however the disabled badge was displayed. Upon viewing the evidence provided by Euro car parks ltd the vehicles dashboard can not actually be seen as there is a reflection of the sky on the windscreen in the image, therefore there is actual no proof a valid disabled badge was not displayed. Moreover I can see an outline of a disabled badge in the bottom right corner of the windscreen,

    I appealed to the operator and provided evidence of the disabled badge but was neglected. The operator knows I am a genuine user of the car park then there is no need to issue a fine especially after evidence of disabled badge was shown.

    In addition on the POPLA website itself I came across the 2 case studies on keypad errors and both state that :-

     “Section 17 of the British Parking Association Code of Practice covers the steps a parking operator should take when a keying error occurs. If there has been a minor keying error, for example one digit entered incorrectly, the parking operator is expected to have identified this before issuing a parking charge notice. If they failed to do this, they are expected to cancel the parking charge notice when the motorist appeals.

    In situations where a major keying error has occurred, for example the motorist entered an entirely different registration, the parking operator is not expected to have identified this before issuing a parking charge notice. But it is expected that such errors are dealt with appropriately at the first appeal stage, especially if it can be proven that the motorist has paid for the parking event, that the motorist attempted to enter their vehicle registration mark, or they were a legitimate user of the car park (e.g. a customer).”

    The operator did not offer to reduce the charge to a maximum of £20 when I appealed and had simply rejected my appeal. Therefore the operator has failed to follow the keying error guidance in the British Parking Association Code of Practice.

     3) Authority to Issue Tickets – No Evidence of Landowner Authority

    EuroCarParks (hereafter named as operator) is put to strict proof of full compliance with the BPA Code of Practice. As this operator does not have proprietary interest in the land then I require that they produce copy of the contract with the landowner. Operator have not provided me with their contract with the landowner & the leaseholder. As if a ‘genuine customer’ gets ticketed then this should be cancelled. After all, the reason a land owner employs a parking company is to stop non-customers abusing the car park – and not to deter genuine customers from using the site. I have provided evidence that I am a ‘genuine customer ‘to the operator however they have not taken this into account.

     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:

     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 aso 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

    4)               No legitimate interest in enforcing a charge 

    The operators have failed to address the issue of any legitimate interest in enforcing a charge. In the case where a car was parked in a permit car park with permission of the principal (e.g. the landowner) then it could be argued that this overrides the contract with the parking company. The leaseholder gives me permission to park in the car park by entering the registration into the terminal. The registration was added into the terminal and a disabled badge was displayed and it is up to the operator to provide proof the terminal works 100% of the time. Merely providing a list of registration numbers doesn’t prove it works 100% of the time. Operator has not provided proof that the terminal has been successfully validated/verification and can cope up to recording a certain amount of registration plates per hour.

    One of the key points from the ParkingEye vs Beavis case was that the charge was necessary to deter overstaying; if they did not issue penalties then the car park would be unfairly used. The flip side of this is that if there were no legitimate interest, then the charge would be an unenforceable penalty an example here is entering an incorrect VRN into a terminal.

    5)               EuroCarPark Signage – Non compliance BPA

     BPA’s Code of Practice (18.2) states:

    “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

    BPA’s Code of Practice (18.3) states: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

    The signage does not comply with the BPA requirements as it cannot be read by drivers. A driver entering the car park cannot see a sign on top left as this is a blind spot for any driver. Pictures can be seen attached, it is impossible for a driver to see the hidden sign which is on the top left as indicated below in Pic 2.

    Pic 1 shows the entrance to the car park and no sign is visible.

    I could not take a picture of the sign if I’m facing straight at the entrance and hence to angle my self to show the sign as seen in pic 2.

    6) No Planning Permission from Essex County Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

    A search in Essex county Council planning database does not show any planning permission for the pole-mounted ANPR cameras for the Meadows Car Park Chelmsford, nor does it show any advertising consent for signage exceeding 0.3m2.

    UK government guidance on advertisement requires:

    “If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under. It is criminal offence to display an advertisement without consent.”

    This clearly proves the operator has been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.

    I request the operator to provide evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2 , prior to the date to which this appeal relates.


  • Le_Kirk
    Le_Kirk Posts: 22,278 Forumite
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    edited 21 October 2023 at 3:58PM
    This thread was started by @safeqaz but now seems to have been taken over by @Kazaa! Has there been a change of user name? If not, trying to answer two separate posters on one thread can become confusing. 
  • Coupon-mad
    Coupon-mad Posts: 131,404 Forumite
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    edited 21 October 2023 at 4:52PM
    Get rid of the intro with "I" followed by a comma (twice) which is bad English written by one poster years ago.  Horrible to keep seeing that awful grammar copied - bin it!
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  • KeithP
    KeithP Posts: 37,567 Forumite
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    I believe on the day when I entered my VRN into the keypad...
    Does this tell them who was driving?
    If so, there is no need for your paragraphs about POFA compliance.

    The NTK was sent to me without giving me the opportunity to identify the driver and current address for the driver. Moreover there was no discount offered there making the notice not in compliance with POFA.
    That's most unusual.
    I don't think I have ever seen a NtK which doesn't invite the keeper to tell the parking company who was driving.
  • Fruitcake
    Fruitcake Posts: 58,223 Forumite
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    edited 21 October 2023 at 9:08PM
    safeqaz and @Kazaa may be the same poster, but that would be odd since they have different profiles yet the appeal by the latter includes comments I made to the former, then as well as the comments already made, the following needs correcting,

    Para 1, I believe on the day when I entered my VRN into the keypad either the signal to the keypad failed or that there may have been a genuine VRM keying error.

    Get rid of this because not only does it destroy a non-PoFA compliant point, it is irrelevant because incorrect VRM was not the reason for issuing the PCN, and also admits to another breach of parking Ts and Cs.

    "
    Moreover there was no discount offered there making the notice not in compliance with POFA".

    It should read "thereby" or "therefore." You should also quote the specific PoFA and BPA CoP paras with which the NTK does not comply.

    Para 2 "Moreover I can see an outline of a disabled badge in the bottom right corner of the windscreen,"

    It should either read, "bottom left corner of the windscreen," or, "bottom right of the image."

    It is not a fine. Do not call it that.

    Get rid of the reference to a keying error. It is irrelevant as already explained.

    Para 4 is irrelevant and should be removed in its entirety in my opinion.

    Para 5, the last line contradicts the penultimate line. Either the entrance sign is not visible, or it is only visible if the driver looks away from the direction of travel. Personally I wouldn't use the word "I".

    Para 6, not having advertising consent won't win at PoPLA, but it is a breach of Para 12 of the PoFA so that should be mentioned.

    Complaints to the BPA, the keeper's MP, and the relevant council planning department should be made about the lack of advertising consent for signs, which is a criminal offence.

    I think you should also check the BPA CoP because I think adding a cheque handling charge breaches this, as well as potentially making the charge in excess of the maximum permitted £100. You should also complain to the BPA and your MP about both of these, especially the failure to offer a discount to the keeper. 

    In my opinion, any unfair PCN issued where a disabled motorist is unfairly penalised should result in an appeal point about a breach of the Equality Act 2010, and complaints to the relevant ATA (the BPA in this case) the landowner, and the keeper's MP. It won't win at PoPLA, but in my opinion should always be point 1 of an appeal in case it ever gets to court.
    The Blue Badge scheme does not apply on private land.
    A Blue Badge is not the only indicator of a disability.
    The absence of a Blue Badge does not indicate an absence of disability.
    The Equality Act 2010 requires *cough* service providers such as parking operators to make reasonable adjustments for people with disabilities who have protected characteristics in accordance with the Act. Failure to do so is indirect discrimination, which is a criminal offence.
    Pursuing a motorist with a disability who has protected characteristics once they are aware that person is covered by the relevant parts of the Act is direct discrimination, which is also a criminal offence.

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  • Kazaa
    Kazaa Posts: 80 Forumite
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    It seems like when i logged in second time from this laptop it managed to bring up my old account so yes both safeqaz and Kazaa are mine. Thanks for the comments i will readjust and yes the NTK did not invite the keeper to identify the driver but the windscreen ticket did. So i guess they didnt add it to the NTK
  • Kazaa
    Kazaa Posts: 80 Forumite
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    Ive taken your comments into consideration and made the changes as well as removed some sections which were irrelvenant. I didnt add the Equality Act just yet as its just at POPLA stage for now and POLA wont consider it as a point.


    The registered keeper of this vehicle received a letter dated  active as a notice to the registered keeper. My appeal to the operator – Euro Car Parks Ltd – was submitted and acknowledged but subsequently rejected by a letter dated . I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

    1) The Notice to Keeper does not comply with sub-paragraph 8 point 2 (e & g) and therefore is not POFA compliant

    2) Permission to park – Failure to Comply with BPA

    3) Authority to Issue Tickets – No Evidence of Landowner Authority

    4) EuroCarPark Signage – Non compliance BPA

    5) No Planning Permission from Essex County Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

     

    1)             The Notice to Keeper does not comply with sub-paragraph 8 point 2 (e & g) and therefore is not POFA compliant

    Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12. EuroCarParks Ltd have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 8, which stipulates a mandatory process if driver is not identified as follows:-

    “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;

    g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

    The NTK was sent to me without giving me the opportunity to identify the driver and current address for the driver. Moreover there was no discount offered therefore making the notice not in compliance with POFA.


    2) Permission to park - Failure to Comply with BPA

    The notice received stated a disabled badge was not displayed, however the disabled badge was displayed. Upon viewing the evidence provided by Euro car parks ltd the vehicles dashboard can not actually be seen as there is a reflection of the sky on the windscreen in the image, therefore there is actual no proof a valid disabled badge was not displayed. Moreover I can see an outline of a disabled badge in the bottom right corner of the windscreen in the image.

    I appealed to the operator and provided evidence of the disabled badge but was neglected. The operator knows I am a genuine user of the car park then there is no need to issue a parking charge notice especially after evidence of disabled badge was shown.

     

    3)             Authority to Issue Tickets – No Evidence of Landowner Authority

     

    EuroCarParks (hereafter named as operator) is put to strict proof of full compliance with the BPA Code of Practice. As this operator does not have proprietary interest in the land then I require that they produce copy of the contract with the landowner. Operator have not provided me with their contract with the landowner & the leaseholder. As if a ‘genuine customer’ gets ticketed then this should be cancelled. After all, the reason a land owner employs a parking company is to stop non-customers abusing the car park – and not to deter genuine customers from using the site. I have provided evidence that I am a ‘genuine customer ‘to the operator however they have not taken this into account.

     

    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:

     

    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

     


    4)             EuroCarPark Signage – Non compliance BPA

     

    BPA’s Code of Practice (18.2) states:

    “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

    BPA’s Code of Practice (18.3) states: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

    The signage does not comply with the BPA requirements as it cannot be read by drivers. A driver entering the car park cannot see a sign on top left as this is a blind spot for any driver. Pictures can be seen attached, it is impossible for a driver to see the hidden sign which is on the top left as indicated below in Pic 2.

    Pic 1 shows the entrance to the car park and no sign is visible.


    5)             No Planning Permission from Essex County Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

    A search in Essex county Council planning database does not show any planning permission for the pole-mounted ANPR cameras for the Meadows Car Park Chelmsford, nor does it show any advertising consent for signage exceeding 0.3m2 therefore this is a breach of POFA Paragraph 12.

    UK government guidance on advertisement requires:

    “If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under. It is criminal offence to display an advertisement without consent.”

    This clearly proves the operator has been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.

    I request the operator to provide evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates.

  • Coupon-mad
    Coupon-mad Posts: 131,404 Forumite
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    Remove this and replace with "I"

    The registered keeper of this vehicle received a letter dated  active as a notice to the registered keeper. My appeal to the operator – Euro Car Parks Ltd – was submitted and acknowledged but subsequently rejected by a letter dated . I contend that I, as the keeper, am not liable for the alleged parking charge and 
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
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