Euro car parks Morrisons POPLA appeal advice

Coupon-mad

It never increases.  You aren't paying.

But start to draft a POPLA appeal.

Le_Kirk

SamP92 said:

Still received no update from Morrisons

Chase them and explain you are still pondering on whether to ever shop there again or use a supermarket that cares about its customers - and inform all your family and friends!

SamP92

I was on the phone yesterday afternoon for 30 minutes I was asked  to send a copy of the parking notice over and why I was appealing the fine. I was told someone from the parking fine department will call back and to expect a phone call

SamP92

Just wanted to add some context, this is the copy of the rejection of internal appeals:

Having carefully considered the supporting evidence provided by you, Euro Car Parks (ECP) have decided to reject your appeal for the following reasons:
  The Site is operated by an Automatic Number Plate Recognition (ANPR) system. ANPR cameras have captured an image of the vehicle registration mark entering and leaving The Site and calculated the duration of stay.
 Parking at The Site is limited to 180 minutes. Your vehicle entered at 18:40:30 and exited at 22:06:06 therefore was parked longer than the maximum period allowed.
 Signage located throughout The Site clearly details the terms and conditions. On entry to private land, it is the responsibility of the driver to ensure all terms and conditions as detailed on the signage are adhered to.
 Please be advised that it is the registered keeper’s responsibility to inform of the full name and UK serviceable address of who was driving the vehicle within 28 days beginning with the day after the notice was given. If the full amount remains unpaid, under Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’), Euro Car Parks have the right subject of the Act to recover from the keeper of the vehicle at the time it was parked so much of that amount which remains unpaid.
 As you have not provided a UK serviceable address, liability has been transferred back to you as the Registered Keeper.  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. C1 MB AR/MS/v.001
 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.
 With regards to the reference to “Pre-Estimate of Loss/breach of consumer contracts 1999.” Please be advised that the Supreme Court has made judgement (04/11/15) that clearly sets out the issue of parking charge notices on private land (law of contract applies) and in particular pre-estimate of loss. The parking charge notice is enforceable on the basis that it protected a legitimate interest when the driver failed to adhere to the terms and conditions and was not extravagant, exorbitant nor unconscionable. The parking charge is not an unenforceable penalty and does not breach the Unfair Terms in Consumer Contracts Regulations 1999. -It’s the driver’s responsibility to check the signage prior to leaving the vehicle on site.
-Contract Law Applies The parking charge notice has been issued correctly and remains payable. 

SamP92

Below is a draft of my POPLA Appeal:

A notice to keeper was issued on *insert date* and received by me, the registered keeper of ........ for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at *Insert location*. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

Firstly, the amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

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 the defendant can confirm that they were, however the defendant is exercising their right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. The defendant is the keeper, however 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 the defendants 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) the defendant has personally not complied with terms in place on the land and show that the defendant is personally liable for their parking charge. They cannot.

The BPA code of practice says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

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 the defendant 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.''

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 proprietary interest in the land the defendant requires that they produce an un-redacted 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 the defendant suggests 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 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 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 the defendant puts 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.

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Euro Car Parks any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. I require Euro Car Parks to demonstrate their legal ownership of the land to POPLA.

I contend that Euro Car Parks  is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles Euro Car Parks   to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Euro Car Parks   to prove otherwise so I require that Euro Car Parks  produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Euro Car Parks  and the owner/occupier, containing nothing that Euro Car Parks can lawfully use in their own name as a mere agent, that could impact on a third party customer.

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge Euro Car Parks to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge Euro Car Parks that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

Coupon-mad

You were on the phone to Morrisons? Surely it's the site agent you need to complain to? Morrisons don't use ECP.

Must be a retail park site owned separately and it's the property agent which runs the site who can cancel.

Umkomaas

Coupon-mad said:

You were on the phone to Morrisons? Surely it's the site agent you need to complain to? Morrisons don't use ECP.

Must be a retail park site owned separately and it's the property agent which runs the site who can cancel.

@Coupon-mad - ECP is definitely the preferred supplier for Morrisons. 

Coupon-mad

Used to be ParkingEye.

Umkomaas

ECP have been there for a good 2 (maybe 3) years. 

MothballsWallet

Coupon-mad said:

You were on the phone to Morrisons? Surely it's the site agent you need to complain to? Morrisons don't use ECP.

Must be a retail park site owned separately and it's the property agent which runs the site who can cancel.

Morrisons have used ECP in ours for a few years now.

It's the typical set up - quite a lot of **** parking and no one patrolling the car park (because that would eat into their profits) to deal with it.