Eurocar Parks Ticket- Acorn Retail Park

nsimmons10

Ok I’ve found one.. I need to edit and adjust it. Should I then put it on here before I send? 

Sorry I’m bloody useless at this stuff

Coupon-mad

Yes please. You are doing great. 

Fruitcake

You also need to check precisely what your hire agreement says. Specifically, what does it say about parking charge notices as opposed to fines, penalties, and authorities.

You need to read this in conjunction with the PoFA para 14, sub para 3 (a) that says,

14 (3)The statement of liability required by sub-paragraph (2)(c) must—

(a) contain a statement by the hirer to the effect that the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer;

Parking charges from an unregulated company are not penalty charges nor fines, therefore if the hire agreement doesn't mention, then the PPC will have failed to comply with that specific paragraph, meaning the hirer cannot be held liable.

nsimmons10

I’ve copied and pasted a draft, do I need to include photos- would mean driving back and getting some or should use the ones they sent me of the parking sign? It’s the bit near 19.2, I am unsure of. 

many thanks

POPLA Adjudicator,

''Reference: Parking Charge Notice xxxxxxxxx : Vehicle Registration xxxxxxx

I am appealing a parking charge from UKPC on the following points:

1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('PoFA')

In order to rely upon PoFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with PoFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of PoFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (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), together with a copy of the Notice to Keeper.

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).

2. 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/hirer 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant 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 hirer without a valid NTH.

As the hirer 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 because the fact remains I am only the hirer and ONLY Schedule 4 of the PoFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the PoFA in this case, 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. They cannot.

Furthermore, the vital matter of full compliance with the PoFA 2012 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 hirer of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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.''


3. 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 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 - 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. Insufficient and unclear signage in the area the vehicle was parked

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

 As such, the signs were not so prominent with their terms and conditions that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park in the event that they left the site- and therefore I contend the elements of a contract were conspicuous by their absence. The signage is not a contract or offer of a contract but an invitation to treat.

Section 19 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

19.2 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. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. 

See Appendix B for an example of an entrance sign and more information about their use.

19.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

If a driver can't read the sum of the parking charge (£100) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

nsimmons10

Fruitcake said:

You also need to check precisely what your hire agreement says. Specifically, what does it say about parking charge notices as opposed to fines, penalties, and authorities.

You need to read this in conjunction with the PoFA para 14, sub para 3 (a) that says,

14 (3)The statement of liability required by sub-paragraph (2)(c) must—

(a) contain a statement by the hirer to the effect that the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer;

Parking charges from an unregulated company are not penalty charges nor fines, therefore if the hire agreement doesn't mention, then the PPC will have failed to comply with that specific paragraph, meaning the hirer cannot be held liable.

I have found the agreement from the hire company, it says this so I think I can’t use this point. 

•when the vehicle is in your possession, you are responsible for any fines and administration charges including any parking, speeding or congestion charges incurred. 

Coupon-mad

However, your POPLA Appeal is a winner!

nsimmons10

Yeah is it all good.. I’ll send it. 

Thank you.

Do I need to add pictures?

Coupon-mad

No you have winning points.

Debszzzz2

nsimmons10 said:
I have found the agreement from the hire company, it says this so I think I can’t use this point. 

•when the vehicle is in your possession, you are responsible for any fines and administration charges including any parking, speeding or congestion charges incurred. 

That bit is very ambiguous and fails s69 of the CRA 2015 for unfair terms in a contract. My interpretation is that your responsibility for administration charges only applies to parking fines, speeding fines and congestion charge fines. What you received from ECP is none of these things.

Based on this, you should tell your credit card company put ahold on the payment and explain that you dispute it.

nsimmons10

Thanks,Debszzzz2 said:

nsimmons10 said:
I have found the agreement from the hire company, it says this so I think I can’t use this point. 

•when the vehicle is in your possession, you are responsible for any fines and administration charges including any parking, speeding or congestion charges incurred. 

That bit is very ambiguous and fails s69 of the CRA 2015 for unfair terms in a contract. My interpretation is that your responsibility for administration charges only applies to parking fines, speeding fines and congestion charge fines. What you received from ECP is none of these things.

Based on this, you should tell your credit card company put ahold on the payment and explain that you dispute it.

Thanks, the payment for admin fees has already been taken. They had my details on file 😫.

I’ll send the POPLA thing and then see how I get on. Fingers crossed it all goes through and then I take on Auxilis to get the £60 admin fee refunded.