Advice Needed - PCN appeal rejected Euro Car Parks

paulstevens64

Hi ParkingMad 2023,

The info re hiring a car is critical, as long as you have not declared yourself as the driver. You need the section in the Newbies thread:


 COMPANY, LEASE OR HIRE CARS ANYWHERE IN THE UK

Whilst these are for initial appeals when a "hirer". You can use the content for another point at POPLA - I suggest no 1, or 2.

The key point is that as the Parking company have failed to provide the documentation stated in Paragraphs 13and 14 of POFA, the Parking Company cannot hold the hirer (keeper for the day) liable.

ParkingMad_2023

paulstevens64 said:

Hi ParkingMad 2023,

The info re hiring a car is critical, as long as you have not declared yourself as the driver. You need the section in the Newbies thread:


 COMPANY, LEASE OR HIRE CARS ANYWHERE IN THE UK

Whilst these are for initial appeals when a "hirer". You can use the content for another point at POPLA - I suggest no 1, or 2.

The key point is that as the Parking company have failed to provide the documentation stated in Paragraphs 13and 14 of POFA, the Parking Company cannot hold the hirer (keeper for the day) liable.

Thanks @paulstevens64

I have just added the below point: 

6.     Failure to comply with Keepers Liability and POFA 2012

 

As stated in paragraph 13(2) of POFA 2012...

"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) A copy of the hire agreement; and

(c) A copy of a statement of liability signed by the hirer under that hire agreement.

AND

Paragraph 14(2) and (3) of POFA 2012:

(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.[/I]

- You were required to send this information to me (as Registered Hirer) within 21 days after receiving them from the lease/hire company (Audi).
- You were required to send these documents to me no later than 49 days after the NTK was sent to the hire company, which was 20th September.
- Therefore I should have received these documents no later than 8th November 2023.
- As this has not happened, you cannot use POFA to assume keeper liability.

1505grandad

"In my appeal I clearly stated that the machine would not let me pay past 8pm and in no way did I purposely try to avoid paying £2.00."

Unfortunately looks like the driver has been identified so POFA not applicable.

ParkingMad_2023

Hi I have just received the below from POPLA. What do I do next? TIA

ECP EVIDENCE RE POPLA CASE NUMBER XXXX
XXX Vs Euro Car Parks
PCN Number – XXXXX
VRM – XXXX
Date of event – 14 September 2023
Time – 20:43:38
Car Park – The Meadows Retail Park - Chelmsford
Breach of Terms and Conditions – The P&D/permit purchased did not cover the date and time of parking

Please find enclosed the evidence pack:
1. (B) Case Summary and Rules/Conditions
2. (C) Copy of Parking Charge Notice XXXXXX
3. (D) Registered Keeper Details and Liability Trail
4. (E i) Original representation received from XXXX
5. (E ii) ECP Notice of Rejection
6. (G) ECP response to the POPLA appeal logged by XXXX
7. (F) Signage Location Plan and images of Car Park

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 XXXXX was issued to vehicle XXXX at the Euro Car Parks site at The Meadows Retail Park - Chelmsford for breach of terms and conditions: The P&D/permit purchased did not cover the date and time of parking.

The Meadows Retail Park - Chelmsford car park operates an ANPR + P&D/Pay by Phone camera controlled operation.

An official appeal representation was received on the 19 October 2023 where XXXX stated that they have paid for parking up to 20:00 hours as the signage informed them that the signage was informing of free parking after 20:00 hours. (I did not say the signage said parking was free)

Euro Car Parks then responded: 

Having carefully considered the evidence provided by you we have decided to reject your appeal for the following reasons: 

•  The car park is operated by Automatic Number Plate Recognition (ANPR). Cameras capture an image of vehicles entering and leaving the car park and calculate their length of stay on site.
• Signage is clear drivers must purchase a valid pay and display ticket for the full duration of their stay. 
• A pay and display ticket matching your vehicle registration was purchased for £1.80 - this would have entitled your vehicle to park for up to 2 hours according to the clearly displayed tariff. 
• Your vehicle entered at 17:57:26 and exited at 20:43:38, a total stay of 2 hours and 46 minutes. 
• The P&D/permit purchased did not cover the date and time of parking and therefore the notice and been issued correctly and will remain payable
• Please be advised that signage clearly state that after 20:00 hours a night rate tariff must be purchased

2. Copy of Notice to Keeper (NTK) sent to the registered keeper's address 

PICTURE OF NTK (LEASE COMPANY)

PICTURE OF NOTICE TO HIRER

3. Registered Keeper details and Liability Trail

As the car park is camera controlled the vehicle details were forwarded to the DVLA to obtain the registered keepers details. The DVLA had provided the following details as the registered keeper:

VOLKSWAGEN FINANCIAL SERVICES
C/O VWFS (UK) LTD
BRUNSWICK COURT
MILTON KEYNES
MK145LR

Please note that NTH has been issued taking into account the “memorandum of understanding with the lease companies” as all are aware of the implications and paperwork involved- the NTK was issued and the Hire Company- VOLKSWAGEN FINANCIAL SERVICES supplied on return the Hirer Details name/address- contract start date/contract end date- and the NTH was duly issued on 06/10/2023 and upon receipt the driver logged an appeal. The appellant has confirmed there were driving when contravention occurred, and the breach of terms and conditions not adhered to.

XXXXX then appealed the PCN and did not confirm to be the driver on the day in question, therefore the liability of the notice remains with John Lawrence, the hirer/lease.

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 – this is 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

4. Original representation sent by XXX

COPY OF MY ORGINAL APPEAL

5. ECP notice of rejection to appeal

PHOTO OF ECP REJECTION OF APPEAL LETTER

6. ECP response to POPLA appeal logged by XXXX

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 XXXXX was issued to vehicle XXXX for breach of terms and conditions: The P&D/permit purchased did not cover the date and time of parking at The Meadows Retail Park - Chelmsford. This car park operates an ANPR + 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: The appellant states that the notice was issued unlawfully.

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 to see, read and understand.
• Signage on site is clear, when parking on private land it is the driver’s responsibility to read 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 2 hours and 46 minutes (Figure 1)
• Signage is visible when entering and inside of the car park and when entering private land it would be the driver’s responsibility to read the terms and conditions and adhere to them. (Figure 2 – See Section 7).
• Below is the transaction matching the XXXX. The pay and display ticket/Pay by Phone session did not cover the full duration of parking: 

PHOTO OF PARKING PURCHASED RECORD

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 to pay 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 microprocessor 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 source and 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 office environment, 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 time difference between that tagged on the raw capture and the ‘real time’ of the servers is again tested.

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

Please be advised that there is an evening tariff of £2.00 after 20:00 hours.

According to the clearly displayed tariff drivers are allowed 30 Minutes free parking – drivers wishing to stay longer than the free period are able to purchase extra time at the machines on site.

The vehicle entered at 17:57:26and exited at 20:43:38 – a total stay of 2 hours and 46 minutes – therefore a payment of £2.50 would have been required.

The car park in question is on private land and upon entering such land vehicles are subject to the terms and conditions of parking as shown on the signage. This signage quite clearly states that if your vehicle is in breach of the terms and conditions of the car park then a parking charge notice (PCN) will be issued.

On entry to private land, it is the responsibility of the driver to check for signage and ensure that your vehicle has been correctly parked. Any vehicles found not adhering to the signage will be issued with a parking charge notice (PCN).

Please be advised that there are a number of signs around the car park indicating the restrictions of the site and it is the responsibility of the driver to read them when parking.

I would respectfully remind that contract law applies in this instance.

The car park is private property and signage on entrance and within the private car park clearly set out the rules and regulations of the car park and tariffs (if applicable). By entering the car park, parking, and leaving the vehicle the driver has accepted the ‘contract’ and therefore if the driver fails to comply with the terms and conditions a parking charge notice will be correctly issued.

As the driver remained on site for 2 hours and 46 minutes, the contract has been formed. As the driver did not purchase a valid pay and display ticket/session, the contract has been breached and therefore the PCN was issued correctly

Figure 4 shows the contract between ECP and the landowner

FIGURE 1: PHOTO OF CAR ENTERING AND LEAVING
FIGURE 2: PHOTO OF PARKING SIGNS
FIGURE 3: NTK TEMPLATE
FIGURE 4: CONTRACT BETWEEN ECP AND LANDOWNER
FIGURE 5: BPA CODE OF PRACTICE
FIGURE 6: MORE PHOTOS OF SIGNAGE IN THE CAR PARK

KeithP

ParkingMad_2023 said:

Hi I have just received the below from POPLA. What do I do next? 

Pick it to pieces.
Go through it checking every detail and point out to PoPLA everything that ECP have got wrong.

This part of the process is fully described in the third post on the NEWBIES thread following the bold heading...
AFTER SUBMITTING YOUR POPLA APPEAL:

Coupon-mad

Hi I have just received the below from POPLA. What do I do next? 

You go back to the NEWBIES thread. 

ParkingMad_2023

Great news. POPLA Appeal was successful. THANK YOU FOR ALL YOUR HELP! 

“I am allowing this appeal, with my reasoning outlined below: The appellant has not admitted to being the driver. As such, I will be considering their liability as the keeper of the vehicle. While I acknowledge a Notice to Keeper was initially issued to the hire firm and a Notice to Hirer then issued to the hirer, the operator must meet the strict requirements set out in the Protection of Freedoms Act (POFA) 2012. In this case the PCN must contained specific wording including a request that the PCN be passed to the driver. The PCN does not contain this information and therefore does not comply with the requirements of POFA” 

Coupon-mad

Yay, well done @ParkingMad_2023