PCN from ECP

System

This discussion was created from comments split from: Template defence to adapt for all parking cases with added 'admin/DRA' costs - edited 31st July 2023.

Tech_Bear

Hi, I'm after some advice. I received a PCN from ECP recently, I should have come here first, but I drafted an appeal but this was rejected...so my question is...is it worth the time, stress and energy to go to POPLA, do I have a reasonable chance of success ?? 

This is what i sent to ECP - 

Dear Sir or Madam,

 

Parking ticket number:

Vehicle registration number:

 

I received a parking ticket on 31/10/23 and I would like to submit an appeal for the following reasons:

 

As a member of the British Parking Association (BPA) it is my understanding that you should allow your customers a 10 minute grace period to return back to their vehicle. As stated on the letter you sent to me, the time spent in the car park was 2 hours 10 minutes. So I am upset that this letter has been sent to me, as you should be adhering to the BPA’s code of practice.

 

Also, I would like to point out that although the time entered (as captured by your camera) was 10:39.08 due to the pot holed condition of the car park surface and the fact that there are no marked parking spaces, it took me several minutes to find a space to park as other drivers had parked inconsiderately. I would also like to point out that I paid by cash and there was one other person in front of me at the nearest machine to where I was parked. The issue time on my ticket was 10:47.

 

 

Yours faithfully,

*I attached these pics showing my ticket, the shocking state of the car park surface, and the area in purple square showing the nearest meter (on the streatlamp)

(Removed by Forum Team)

We are 



We are talking 15 seconds over (after the 10 minutes grace period of course) even their letters say just 10 minutes!

This is their reply 



Many thanks in advance, any advise is gratefully received 

Le_Kirk

Yes, if they sent you a POPLA code, use it.  There is, in the NEWBIE sticky third post, all the guidance you need for putting together an appeal. There should be grace period after parking to allow you to leave and, looking at that car park, you'd need it to negotiate all those ravines (well OK pot holes).

Tech_Bear

Thank you so much, i'll check out that 3rd post on the Newbies section. It's quite overwhelming, I'm worried that i've shot myself in the foot by admitting that i'm the driver and keeper in my appeal to ECP (I wish i'd come to this site first) so do I still stand a reasonable chance even though I've admitted this ?

I've been back to the car park in question today to take some pics and I've managed to get up on a step high enough to take a pic of the T&C sign and the teeney tiny writing in red and it mentions that ECP are not responsible for the car park surface, which was also going to be one of my main points, as it took me so long to enter/leave etc, but I'll also have to cover this well as the sign was so high that the writing can't be read anyway.

Coupon-mad

Just look at the POPLA DECISIONS thread this year. Take your time.  Do not start at page one! 

Read it from the end backwards and compare the size of the £100 on 'your' signs with those where POPLA have said that some ECP signs aren't adequate.

Copy POPLA's own sentences on that.

Tech_Bear

Thank you CM I'm working on my popla draft today
Kicking myself as this looks like a non-compliant pofa ntk? pretty sure I filled the ecp appeal stuff online as the driver, but can't remember?! 

Tech_Bear

Also, I'm trying to find out the landowner...looks like the site will soon be some new homes ?? 
It won't let me post a link?
Joint venture between BBS and Wavensmere Homes 

Tech_Bear

Please could someone have a look over my recent draft to send to POPLA  - I have to submit this in the next 7 days !

POPLAVerificationCode:XXXXXXXVehicle Registration:XXXXXXX

 

I, the registered keeper of this vehicle, received a letter dated 08/11/2023 acting as a notice to the registered keeper. My appeal to the Operator–Euro Car Parks–was submitted and acknowledged by the Operator, and rejected via an email dated 25/11/2023. 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.Grace Periods: BPA Code of Practice–non-compliance

2.The entrance signs are inadequately positioned and lit and 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

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, and necessary information is not provided

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

1.Grace Periods: BPA Code of Practice–non- Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start. BPA’s Code of Practice (13.1) states that: “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.” BPA’s Code of Practice (13.2) states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.” BPA’s Code of Practice (13.4) states that: “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. 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.” BPA’s Code of Practice (18.5) states that: “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you .If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract. ”The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes .Whilst 13.4 does not apply in this case (it should be made clear-a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to13.1 and 13.2 of the BPA’s Code of Practice .Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

 

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.” “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye–Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.” Needs the details from here Finally, some 3 years ago years ago, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes': “Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DFT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4should be amended to reflect a mandatory 11minute grace period.” The recommendation reads:“ Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should bear minimum of 11 minutes”.

On the day of the alleged parking breach, the keeper entered the car park slowly, carefully trying to avoid the numerous, deep potholes. The car park was very busy, as it was school half term and also due to its close proximity to The Brewery Quarter, a popular leisure and dining complex. It took several minutes to locate a suitable parking space, as there are no marked parking bays and cars were parked inconsiderately and haphazardly.

The occupants exited the vehicle (one passenger is a five year old), gathered their belongings and secured the vehicle. Finding the nearest place to pay by cash in a car park around 13,400 square meters (approximately) wasn’t obvious, no yellow “pay here” signs, but eventually one was located. There was one other customer in front of us paying for their ticket. The sign showing the tariff and the crucial terms and conditions is mounted on a streetlamp pole well over 7 feet above head height, making it impossible to read the very tiny writing in red. Cash was paid for 2 hours, the time on the ticket 10:47.

The letter received from ECP dated 08/11/23 and the email later received states – Time in car park 2 hour(s) 10 minute(s) and the Contravention: The P&D/permit purchased did not cover the date and time of parking?

 Pic 4 North Place Car Park - Image of pay and display machine and mounted signage, taken on a day with similar weather conditions to the day of the alleged parking contravention. You would need a step ladder to be able to read this signage confidently (see 2 patrons paying at the next P&D machine in the distance and how high the sign is in relation to their to the pedestrian view)   

Tech_Bear

2.

 the day of the alleged parking breach, the keeper entered the car park slowly, trying to avoid the

numerous large pot holes. The car park was busy due to its close proximity to the Brewery Quarter, a

popular leisure and dining venue and also as it was school half term. It took several minutes to !nd a

suitable place to park. Also, there are no marked bays in the car park, and other drivers had parked

inconsiderately and haphazardly.

On the day of the alleged parking breach, the keeper entered the car park slowly, trying to avoid the

numerous large pot holes. The car park was busy due to its close proximity to the Brewery Quarter, a

popular leisure and dining venue and also as it was school half term. It took several minutes to !nd a

suitable place to park. Also, there are no marked bays in the car park, and other drivers had parked

inconsiderately and haphazardly.

Grace periods

On the day of the alleged parking breach, the keeper entered the car park slowly, trying to avoid the

numerous large pot holes. The car park was busy due to its close proximity to the Brewery Quarter, a

popular leisure and dining venue and also as it was school half term. It took several minutes to !nd a

suitable place to park. Also, there are no marked bays in the car park, and other drivers had parked

inconsiderately and haphazardly

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 North Place site (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.

 

North Place-main car park sign close-up - the image provided by the operator was taken on a bright, clear day and shows a close up of the main car park sign at eye level, you have to zoom in to look at the small text in red, but by zooming in it makes the text illegible.

The letter received from ECP dated the 08/11/23 mentions that their signage is clearly displayed at the entrance of the car park and throughout the car park. They also say the signage provides clear details of the terms and conditions associated with the car park. How can someone be expected to read an important sign over 7 feet tall from ground level? 

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 as opposed to attempting to locate, read and understand 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 states, “the vehicle was parked at North Place - Cheltenham”.

The NTK also states that the vehicle “North Place Cheltenham at 10:39:08 and departed at

12:49:23”. At no point do Euro Car Parks explicitly specify the “period of parking to which the notice

relates”, as required by POFA 2012.

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” to 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 two close‐up images of the vehicle number plate. 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.

Tech_Bear

5.The ANPR System is Neither Reliable nor Accurate

 

The Euro Car Parks Notice to Keeper (NTK) shows no parking time, merely two images of a number

plate 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 31/10/23 the vehicle: XXXXXXX entered North Place – Cheltenham, at [ENTRY TIME]

and departed at [EXIT TIME] on 31/10/23.”

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 two 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.

 

Tech_Bear

6. The Signs Fail to Transparently Warn Drivers of what the ANPR

Data will be used for, and necessary information is not provided

 

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.

As vehicle registration numbers fall into the category of Personally Identifiable Information (PII),

there should also be clear signage indicating the company operating the scheme and contact details

for the Data Controller, yet none are present. As such, this is a breach of the Consumer Protection

from Unfair Trading Regulations 2008 (CPRs) per POFA FAQ 6, “What protection does consumer

protection legislation provide in relation to parking on private land?”:

“For example, where signs for motorists in a car park are misleading, or other misleading

information is given (for example tickets which look like local authority tickets), or necessary

information is not provided, there may be a breach of the Consumer Protection from

Unfair Trading Regulations 2008 (CPRs). Local authority trading standards services (TSS) and

the Office of Fair Trading (OFT) can take enforcement action where they consider the

regulations have or may have been breached.”

Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid

Parking Charges,

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 the car park signage fails 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 North Place car park (see Figure 2) states:

“We are using cameras to capture images of vehicle number plates and calculate the length

of stay between entry and exit at all times including bank holidays.”

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 only reference to

Parking Charge Notices on Euro Car Parks’ sign makes no mention of Parking Charge Notices being

issued as a result of images captured by the ANPR cameras.

 

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':

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. A camera icon suggests CCTV is in operation for security within the car park.