Euro car parks, hire car, appeal rejected. POPLA appeal drafted, feedback appreciated

Nellymoser

Yes use the square picture above to post it

Bexx9

This is from a parking space:

Another parking space:

This is a sign from below, I'm 5ft and can't see all of it:

These are from the entrance where the spaces begin:

Dash cam image from the entrance, sign that says 3hrs free parking, 1.5hr on match days

The sign just after that says the same thing

Bexx9

I've also just noticed on my appeal rejection letter from ECP it says:

"Parking at The Site is limited to 180 minutes/hours"

But it was Saturday 24th August 2024, we beat Reading 3-0, meaning it was a match day and would be 90mins not 180mins. Any way I could pull them up on that or should I leave it?

Gr1pr

Add it as showing that they believed that standard limit 

Bexx9

This is what I have so far:

As the hirer of the above vehicle, I wish to appeal the parking charge notice Euro Car Parks issued against the mentioned vehicle dated 24th August 2024. I believe the parking charge notice should be cancelled based on the following grounds:

1. Euro Car Parks 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')

2. No evidence that the appellant is the individual liable – No Driver Liability

3. BPA Code of Practice – non-compliance of photo evidence

4. The signs in this car park are insufficient and unclear

5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

6. Misinformation given regarding permitted length of stay

 

1. Euro Car Parks 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, as the hirer, with copies of any of these documents, (a), (b) or (c).

Should the Operator try to suggest that there is any other method whereby a vehicle's keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA's attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

I draw POPLA's particular attention to the section entitled 'Keeper Liability' in which Mr. Greenslade explains that:

'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.......
.......... However keeper information is obtained, 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'.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle's hirer. For this reason alone, POPLA may determine that the Operator's claim against me is invalid.

2. No evidence that the appellant is the individual liable – No Driver Liability

Euro Car Parks has not shown that the entity who it is pursuing is in fact the driver who may have been potentially liable for the charge.

In cases with a hirer appellant, yet no POFA '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.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as they are 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 NTK.

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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

“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 me as hirer 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 Ltd 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.''

Bexx9

3. BPA Code of Practice – non-compliance of photo evidence

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 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 parking charge notice in question does not contain any photographs of the vehicle, and therefore does not 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 images have also been cropped to only display the number plate. As these are not the original images, I require Euro Car Parks 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.

4. The signs in this car park are insufficient and unclear

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver entered the car park, the entrance to which had and still has insufficient signage at the entrance. Not all entrance signs are suitably placed to be read from the distance of the driver of an approaching car, especially whilst manoeuvring round a corner immediately after exiting a busy town centre roundabout, immediately arriving at the car park entrance, which is the case at this site.

Pictures 1-4 below show an entrance sign informing that there are terms and conditions, as per BPA COP 27.2. However, further along the entrance there is no other signage placed so that it is readable by drivers without their needing to look away from the road ahead, as per BPA COP Appendix B.

Pictures 5 and 6 below show that despite selecting two different bays, the signs are not visible from either as they are sporadically and sparsely placed and not immediately obvious.

Picture 7 below shows one of the signs. BPA COP 27.3 states that signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. This picture is not zoomed in and accurately depicts my view as a 5ft tall person, so I can tell you that this sign is definitely not easy to read as it is nowhere near appropriate enough.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the PoFA Schedule 4 and the BPA Code of Practice, some signs in the car park do not clearly mention the parking charge. Large areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance or exit either, so it cannot be assumed that a driver drove past and could read a legible sign, nor have parked near one.

Picture 1 below shows the entrance to the car park from dash cam footage

Picture 2 below shows the entrance to the car park from dash cam footage

Picture 3 below shows further down the entrance from the car park

Picture 4 below shows another side to the car park finding a space

Picture 5 below shows the view having parked in a bay

Picture 6 below shows the view from another bay

Picture 7 below shows one of the signs

 

5. 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 the operator is to produce an unredacted 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 it is suggested 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 CoP defines the mandatory requirements and the operator is put 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.

 

6. Misinformation given regarding permitted length of stay

The appeal rejection letter states that ‘Parking at The Site is limited to 180 minutes/hours.’ Yet attached is a cropped, close-up image of a sign with no distinguishable features of the surrounding area and therefore could be any Sainsburys with a football pitch nearby. The sign clearly states that the maximum stay is 3 hours or 1.5 hours on match days. The PCN was issued on 24th August 2024 which was a match day as Wrexham beat Reading 3-0. Meaning ECP incorrectly believed the standard limit and spread misinformation.

Bexx9

Also, is there any strategy to when I send this? If I leave it quite late, but not too late, it could give ECP less time to get their response together? Though I imagine they have everything ready to copy and paste by now

Grizebeck

personally id only do the appeal on no liability as a hirer case, will ensure its focussed on one item

Bexx9

Grizebeck said:

personally id only do the appeal on no liability as a hirer case, will ensure its focussed on one item

Interesting, and do you think what I've got for that section is enough? 

Grizebeck

Yes it's spot on. It's all you need. Anything else muddles the mind