ECP Appeal Rejected after following MSE Advice

Coupon-mad · 23 February 2017 at 12:24AM

I don't take pm's.

PS - how long does the parking company have to send an "evidence pack"? POPLA appeal submitted 20 Jan - evidence pack received 20 Feb

So maybe they sent it to POPLA earlier. Have you logged in with the POPLA password and seen whether the Portal is even still open for comments? POPLA close it on day SIX after they get the evidence, never mind when you get it...there is no 'letter' - you have a few characters on the Portal, no attachments and no new evidence can be added. Only comments.

I am currently reading the links to an LCP parking ticket that someone won but it was late 2014/2015 (stevedrums and lynneh) - would you say that thats still a valid rebuttal?

Yes if the signs are still unclear.

the_wheels_have_fallen_of · 23 February 2017 at 12:13PM

Coupon-mad wrote: »

I don't take pm's.

So maybe they sent it to POPLA earlier. Have you logged in with the POPLA password and seen whether the Portal is even still open for comments? POPLA close it on day SIX after they get the evidence, never mind when you get it...there is no 'letter' - you have a few characters on the Portal, no attachments and no new evidence can be added. Only comments.

Yes if the signs are still unclear.

OK CM no problem, completely understand - I logged into the POPLA portal and its at the we are "progressing your appeal" stage before "final decision". I tried to post my potential rebuttal here last night but for some reason, I got blocked. Do I just email the rebuttal to POPLA then ? Its very unclear what to do as on the POPLA site when I log in there is nowhere to submit

the_wheels_have_fallen_of · 23 February 2017 at 12:16PM

the_wheels_have_fallen_of wrote: »

OK CM no problem, completely understand - I logged into the POPLA portal and its at the we are "progressing your appeal" stage before "final decision". I tried to post my potential rebuttal here last night but for some reason, I got blocked. Do I just email the rebuttal to POPLA then ? Its very unclear what to do as on the POPLA site when I log in there is nowhere to submit

I received an evidence pack from ECP regarding the above and wish to provide the following to support my appeal and rebuttal of ECP’s evidence pack as per my original appeal to you dated 20 January 2017:
1. The Operator has NOT shown that the individual that they are pursuing is in fact liable for the charge
As per my appeal, I re-iterate that 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.'
The evidence pack provided states in Section 6 that Miss JC states that “she was not the driver”.
This is factually incorrect – Miss JC stated that there would be no admission of who the driver was
2. Euro Car Parks have no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
The evidence that has been provided in the Evidence Pack is somewhat contradictory; The evidence pack in Section 6 says that the Landowner Agreement dated 26 February 2013 clearly shows “landowner authority” from Burley Developments; yet what has been provided in Figure 3 is “Appendix A of the BPA Code of Practice” dated 29 October 2016 !!! Signed by “Robert Plant” and “Smith” – in the same handwriting !!!!. I assert that this document is fraudulent and the correct document showing landowner authority and dated 26 February 2013 has not been provided.

3. The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.
I appealed that the charge was punitive and excessive and is not a genuine pre-estimate of loss. ECP state that the charge is fair because it covers (as per their Section 6) – Explicitly:
· Wages & Salaries (including Employees National Insurance Contributions;
· IT Systems, Software and Peripherals; DVLA fees & processing costs;
· Costs in preparing and sending PCN’s – Stationery, Postage and Printing;
· Legal, Accounting and other professional costs;
· Human Resources;
· Premises Costs;
· Vehicle & Telephone Costs;
· Loss of Pay & Display revenue (where applicable);
· Loss of Purchase Revenue from Retail Outlets within the car park.
I would point out that;

The Department for Transport guidelines state that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

I would conclude that the points that ECP Have raised regarding “fairness of the charge” are all business losses that ECP are trying to recover (and this is clearly articulated in their evidence pack). As is the 'remainder' to be paid back into office wages. Therefore, the charge is quite clearly to recover office losses.

Equally, there has been several invitations for ECP to break down their cost to highlight exactly which losses they have allegedly suffered. The vagaries of ECP's response to this highlights that there is, in fact, no justification in a £90 or even a £50 charge for the alleged offence.
4. Incorrect use of Fairlie vs Fenton 1870

Yet again, I assert that Euro Car Parks have mis-applied Fairlie vs Fenton 1870 by stating:
Any person who makes a contract in his own name without disclosing the existence of a principal, or who, through disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. It therefore follows that a lawful contract between the car park operator and the motorist will be enforceable by the car park operator as a party to that contract. This is supported by case law of Fairlie v Fenton (1870 LR 5 Exch 169).
The crucial part is 'renders himself personally liable'. Essentially this means the operator can sue the motorist if the motorist can sue the operator. In practice, this rarely is the case. The benefit to the motorist is the provision of a parking space, but if that goes wrong, the operator is quick to absolve themselves of responsibility. If the parking surface has a pothole and a vehicle suffers damage, or if the car park surface is covered in ice and the driver slips getting out of the car, then typically it will be the landowner the motorist sues, not the operator of a pair of cameras.
ECP have not provided any evidence regarding why they believe that Fairlie vs Fenton 1870 applies in this case. The incorrect wording has clearly been provided to fill out their case and distract from the facts of the matter.
5. Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.
The signs shown in the photographs provided in the evidence pack do not state any grace period and are therefore non compliant, especially the white sign shown in the first photograph. The photographs shown of the alleged signage at the sight have clearly been blown up which makes the text illegible, especially the text at the bottom of the sign and are not shown from the drivers’ perspective whilst behind the wheel of the car.
Some of the photographs of the signage are date stamped as 12 January 2017 – some nearly 2 months after the alleged parking offence was committed. No evidence has been provided by ECP to show that the signs shown in the photographs were in fact displayed on the date of the alleged offence (23 November 2016)
A signage location plan dated 2014 has been provided in Section 7 – it is clear from this signage location plan that there are blind spots in the car park where the driver of the vehicle cannot see signage.
6. The ANPR system is unreliable and neither synchronized nor accurate
Figure 1 in the evidence pack allegedly shows the vehicle in question entering and leaving the car park in question. There is nothing in the photographs provided that show any particular landmark that would purport to being an entry and an exit route. These photographs could have been taken anywhere on site.
I have asked for evidence of calibration and maintenance of ANPR cameras on the site – this has been ignored and not provided. As this is not an attendant led car park, then I require evidence of the calibration and maintenance records of the ANPR cameras on site at Church Farm, Stockton Heath.
7. Other Inaccuracies in the Evidence Pack provided by ECP
Section 1 – Case Summary and Rule Conditions
The appellant’s name is spelt incorrectly all the way through in a variety of ways – clearly shows the level of lack of attention to detail and lack of checking that ECP carry out whilst putting their evidence packs together.
There is an assertion that the PCN/NTK is compliant in the Evidence Pack; I have not challenged the compliance of the NTK in my original appeal. Yet another piece of evidence that shows that this document is a cut and paste generic template used by ECP.
States that terms and conditions of parking are maximum 2 hours from 0600 – 2159, yet further on the document refers to the parking conditions are 1.5 hours. More inaccuracies that cannot be relied upon !
States that an official appeal representation was received by Miss JC on 13 November 2016 – bizarrely, this is 10 days before the alleged parking offence was committed on 23 November 2016 !

Section 6 – ECP Response to POPLA Appeal
This section states that Miss JC says that she was not the driver. Yet again, I re-iterate that this is false. On a number of occasions I have said that there will be no driver liability and this is laid out earlier in this rebuttal.
Figure 3 is supposed to show Landowner Authority dated February 2013 from Burley Developments – yet the paperwork provided is from October 2016 !!
There is an assertion that no evidence has been provided that the driver was a genuine customer on the day in question. Please see enclosed copy of a receipt from Aldi Stores dated 23 November 2016.
In summary, It is clear that the evidence pack provided by ECP is fraught with inaccuracies both in applying POFA 2012, Fairlie vs Fenton as well as no valid proof of landowner authority and contradictory parking information (2 hours versus 1 ½ hours/90 minutes) and incorrect dates of alleged contravention and appeals. Photographs shown of signage are not date stamped or if they are date stamped, they are date stamped after the alleged parking offence took place (nearly 2 months later). The alleged entry and exit photographs do not show any significant land mark to ascertain whether indeed these were taken at entry and exit and there is no genuine pre-estimate of losses applied to justify the punitive charge of either £50 reduced or £90 cost. The examples of losses are “business losses” and clearly do not apply.
I ask you to rule in favour of my appeal.

Coupon-mad · 23 February 2017 at 1:15PM

Do I just email the rebuttal to POPLA then ?

Yes, and tell them you only received the evidence this week (name the day it arrived and prove it by copying & pasting a copy of the email under your email). As such, you have not had a fair chance to comment - the Portal has closed prematurely - and so here are your comments by email.

the_wheels_have_fallen_of · 23 February 2017 at 1:39PM

Coupon-mad wrote: »

Yes, and tell them you only received the evidence this week (name the day it arrived and prove it by copying & pasting a copy of the email under your email). As such, you have not had a fair chance to comment - the Portal has closed prematurely - and so here are your comments by email.

Many thanks CM - I will do that. Before I send my rebuttal - is it possible that someone can critique my attempt and say whether I've missed any opportunities ?

the_wheels_have_fallen_of · 23 February 2017 at 4:43PM

Update: I have emailed complaints@popla.co.uk with the original email this afternoon, after your advice Coupon-mad telling them about not having a fair chance to present/construct my rebuttal and have asked them to provide an appropriate email addresss by return as well as an extension to providing a rebuttal

the_wheels_have_fallen_of · 24 February 2017 at 5:22PM

Further Update: POPLA did not respond to my email so I rang the customer services number instead and spoke with someone called Georgina. POPLA have now given me until 6 March to provide a rebuttal should I so wish and will note that no appeal is to be considered until they have received a rebuttal from me. Basically, ECP have waited until Day 20 out of the allowed 21 to provide me with an Evidence Pack

the_wheels_have_fallen_of · 9 March 2017 at 8:46AM

UPDATE: POPLA Appeal / Rebuttal Rejected

All - please can someone advise on next steps now my POPLA Appeal & Rebuttal have been rejected? I dont believe that they took any of my rebuttal points into account either !!

Here is the response from POPLA:

the_wheels_have_fallen_of · 9 March 2017 at 8:48AM

Decision
Unsuccessful

Assessor Name
Matthew Yorke

Assessor summary of operator case
The operator’s case is that the Parking Charge Notice (PCN) was issued because the appellant exceeded the maximum time allowed.

Assessor summary of your case
The appellant’s case is the operator has not shown that they are liable for the charge. The appellant says that the operator has no authority to form contracts with drivers or to pursue charges. The appellant says that the Automatic Number Plate Recognition (ANPR) system is unreliable and is neither synchronised nor accurate. The appellant says that the operator have used Fairlie Vs Fenton 1870 incorrectly. The appellant says that there is a lack of signage which is unclear. The appellant says that there are unfair terms in relation to the Consumer Contracts Regulations 1999. The appellant says that the charge is punitive.

the_wheels_have_fallen_of · 9 March 2017 at 8:49AM

Assessor supporting rational for decision
When entering onto a managed private car park, a motorist might enter into a contract by remaining on the land for a reasonable period. The signage at the site will set out the terms and conditions of this contract. Therefore, upon entry to the car park, a motorist should review the terms and conditions before deciding to park. The operator has provided photographic evidence of the signage at the site that states, “1 ½ HOURS MAXIMUM STAY: THIS CAR PARK IS CONTROLLED, FAILURE TO COMPLY WITH THE FOLLOWING RESULT IN THE ISSUE OF A £90 PARKING CHARGE NOTICE: PARKING LIMITED TO 1 ½ HOURS.” The operator’s case is that the PCN was issued because the appellant exceeded the maximum time allowed. The site operates ANPR, the appellant’s vehicle registration XXXXX was captured entering the site at 11:43, exiting at 14:13. The total period of stay was two hours and 30 minutes. The appellant has raised several grounds of appeal. I have addressed each of these below. The appellant’s case is the operator has not shown that they are liable for the charge. After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle in question at the time of the relevant parking event.

The operator is therefore pursuing the appellant as the Registered Keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. Having reviewed the evidence provided by the operator, I am satisfied that the Notice to Keeper is compliant with the requirements of PoFA 2012. Therefore, the operator is able to transfer the liability onto the keeper. The appellant says that the operator has no authority to form contracts with drivers or to pursue charges. Section 7.1 of the British Parking Association (BPA) Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

ECP Appeal Rejected after following MSE Advice

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