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aimone
post Tue, 13 Feb 2018 - 21:34
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Hi,

Wondering if anyone can help, received a PCN, not really wanting to ignore this as the car is through an employee car lease scheme, the company received the NTK(who then moved liability over, how should i proceed with this ticket, appeal?

Thanks in advance

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This post has been edited by aimone: Wed, 14 Feb 2018 - 09:28
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aimone
post Wed, 11 Apr 2018 - 08:44
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So ECP submitted evidence to popla, i cant really understand, they have added copies of the documents that was required (liability doc and lease agreement document) but this was never sent to me with the NTK.

They have also supplied images of the signage in the car park, but not the actual car park the car was parked in.

Another issue i have here is, ECP are referencing another person, I sent the appeals (got someone to help) from a different email address. ECP are referencing this person in the appeal, does that affect anything? should i highlight that the "email owner" has no bearing on this appeal?

---------------------------------

Please find enclosed the evidence pack:

1. (B) Case Summary and Rules/Conditions
2. © Copy of Parking Charge Notice xxx Date – 02/12/2017 Time – 11:06 – Original front copy was placed on the vehicle on the date of issue.
3. (D) Registered Keeper Details and Liability Trail
4. (E i) Original representation received from "friends email account"
5. (E ii) ECP Notice of Rejection
6. (G) ECP response to the POPLA appeal logged by "The hirer"
7. (F) Signage Location Plan and images of Car Park

1. Case Summary and Rule/Conditions
Parking Charge Notice xxxx was issued to vehicle xxxx on the xxx. The notice was issued as the vehicle was parked in a pay and display car park without displaying a valid pay and display ticket/season ticket.

Signage on entrance and within the car park clearly advises all drivers that this is a pay and display car park.

The rules for the site are as follows:

Up to 2 Hours free parking for customers via refund subject to £5 minimum spend in Matalan
Charges apply at all times
Up to 1 hour £1.00
Up to 2 hours £2.00
Display a valid ticket clearly inside your windscreen
Park only within marked bays
Parent & Child parking only within marked bays
Parking limited to 2 hours (No return within 2 hours)
Disabled bays are for disabled badge holders only (free parking in disabled bays only, valid badge must be clearly displayed in windscreen)
"name of person who owns the email account" appealed the notice on xxxx where he declined to provide the name of the driver.

Euro Car Parks responded:

When purchasing a pay and display ticket, you must ensure it covers the duration of your stay.
I can confirm that no pay and display ticket matching your VRM was purchased at the time of the terms and conditions.
The signage is clear, a valid pay and display ticket must be purchased for the full duration of your stay on the car park.
I can confirm the parking charge notice was issued correctly and remains payable.

3. Registered Keeper details and Liability Trail

Parking Charge Notice (PCN) xxxx was issued on the xxx to vehicle xxxx. The PCN was completed onsite by a Euro Car Parks Patrol Office, placed in a clear plastic bag and then placed underneath the windscreen wiper blade.

As ECP did not receive any correspondence regarding the PCN, the notice was then forwarded to the DVLA to obtain the details of the registered keeper:

On the 18/01/2018 the registered keeper/hire company provided the details of the hirer of the vehicle, along with a signed agreement. ECP followed due procedure and re-issued the notice to the address below:

"email owner" than appealed and stated that there will be no admissions as to who was the driver on the day in question. "email owner" did state that he was the keeper of the vehicle, however, as no details were supplied i.e. address etc., ECP have decided to pursue the hirer of the vehicle, "the keeper", as provided by the registered keeper. "the keeper" also confirmed in his appeal to POPLA he was the hirer of the vehicle in question.

Change of liability (doesnt this have to be signed?)

Parking Charge Reference:
Vehicle Registration:
Email Address:
Name: xxx
Address:
Home Telephone:
Mobile Telephone:
Work Telephone:

Reason For Appeal: This vehicle is on hire to "the keeper" under the xxx, please transfer liability to "the keeper" as per statement of liability in clause 6.2 of the attached loan agreement

I am the Registered Keeper

18/01/2018 16:01

------------------------------------

6. ECP response to POPLA appeal logged by "the keeper"

xxx is on private land, upon entering private land it is the responsibility of the driver to ensure site signage has been read and adhered to. Matalan - Cheltenham car park operates a pay and display scheme where the charges apply at all times and therefore it is imperative that all vehicles park with in accordance to the signage.
Parking Charge Notice xxx was issued to vehicle xxx for breach of terms and conditions D: No Valid Pay and Display Ticket / Season Ticket / Pay By Phone purchased or displayed at Matalan - Cheltenham car park.
In "the keeper" appeal to POPLA where he stated the following:

- Notice to Hirer was not delivered
- No clear signage in the car park
- No evidence provided as to who was the driver


Euro Car Parks can confirm the following:

- There is signage throughout the site to inform the drivers that Matalan - Cheltenham is a pay and display car park.

- Section 18.3 of the British Parking Association’s (BPA) code of practice explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand. Signage on site is clear, when parking on private land it is the driver’s responsibility to read the signage displayed and parked accordance with the terms and conditions as stated.

- Please see figure 1 show the vehicle xxx parked onsite. As you can see "the keeper" parked on site without a valid pay and display ticket

- Signage on site is clear, when parking on private land it is the drivers responsibility to read the signage displayed and parked accordance with the terms and conditions as stated

- The signage clearly states the terms and conditions of parking, all drivers are required to purchase a valid pay and display ticket for the duration of their stay (Figure 2).

- By parking on site the driver has accepted the terms and conditions as displayed on the signage and a contract is in place between the diver and ECP that has been breached by the driver failing to purchase a display a valid ticket to cover the entire duration of stay.

- As no details of the driver were supplied Euro Car Parks have the right subject of the Act to recover from the hirer of the vehicle, under Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’). Our Notice To Keeper clearly advises the keeper of the vehicle to provide the details of the driver in order to transfer the liability. Therefore ECP have decided to pursue the hirer of the vehicle, "the keeper".

- 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.

- We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated terms & conditions and to follow up on any breaches of these that are identified. The parking charge in this instance was established after consideration of the following costs which we incur on each notice issued;

- Wages and salaries including Employers National Insurance Contributions
- IT systems, software, licences and peripherals
- DVLA fees and processing costs
- Costs in preparing and sending PCNs – Stationary, Postage and Printing
- Legal, Accounting and other Professional Costs
- Human Resources
- Premises Costs
- Vehicle and Telephone Costs
- Loss of Pay and Display Ticket revenue generating from paying customers (where applicable)
- Loss of purchase revenue to Retail Outlets within the car park

- 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.

- 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.

Vehicle xxx was parked onsite at Matalan - Cheltenham car park without a valid parking permit. Signage in place is clear in its intent therefore the notice has been issued correctly and should remain payable.

--------------------------------------------------------

POPLA have given me 7 days to add comments to the evidence, should i highlight the evidence of photos of the carpark are not correct, and they didn't send the documents with the NTK so i assume my appeal on those grounds will dismissed?

Thanks
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nosferatu1001
post Wed, 11 Apr 2018 - 09:26
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Well, you rcomments need to confirm that the NtH did NOT contain thoise documents, and they should be disregarded as the time to supply them (21 days) has long passed - ECP lost their shot at Hirer liability and are now trying to cover this up after the fact

Im not sure what the issue is with names - can you summarise more clearly? Could just be having a slow morning!
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aimone
post Wed, 11 Apr 2018 - 09:37
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QUOTE (nosferatu1001 @ Wed, 11 Apr 2018 - 09:26) *
Well, you rcomments need to confirm that the NtH did NOT contain thoise documents, and they should be disregarded as the time to supply them (21 days) has long passed - ECP lost their shot at Hirer liability and are now trying to cover this up after the fact

Im not sure what the issue is with names - can you summarise more clearly? Could just be having a slow morning!


The appeals were sent from a friends email, so ECP have been referencing this person as the appealant in a few of the points in the evidence.
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nosferatu1001
post Wed, 11 Apr 2018 - 13:05
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Ah OK, well point out that their evidence cant be trusted as they cant even get the identity of the person correct....
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aimone
post Fri, 13 Apr 2018 - 09:56
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Does this look ok for a reply to the evidence?

I confirm that the NTH did NOT contain any of those documents and they should be disregarded as the time to supply them (21 days) has long passed.

I will also add that this evidence cannot be trusted for the points below:

The appeals were sent from someone else’s email not my own, the operator cannot even get the identity correct and has referenced another person as an appellant in the appeal, also written on documentation that was sent by post, which is unprofessional, the appeals were simply sent from someone else email account.

Images that the operator has provided are NOT photographs of the actual car park where the driver parked the vehicle, they have included images of 2 other carparks which are separate car parks, these signs are not visible from the carpark the car was parked in.

“Signage on entrance and within the car park clearly advises all drivers that this is a pay and display car park.” - as you can see from my images i supplied there is no signage on entrance to the carpark.

I requested evidence which showed how visible the signage was from where the car was parked, these have not been supplied, so please ask yourself why they have not supplied the images of the carpark where the vehicle was parked. The operators failure to provide any images of the carpark enforces the point that there was no contract or agreement.
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nosferatu1001
post Fri, 13 Apr 2018 - 10:11
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Does the PPC assert they actually sent those documents with the Notice to Hirer? Simple yes or no

If they DID assert they sent them, then state that they are attemptiong to mislead POPLA; these documents were NOT supplied with the original NtH and they cannot now be supplied. Peronally I would add a WS signed under a statement of truth to the comments email - expect them to say you cannot add new evidence, but state that the operator has falsified evidnec eto POPLA so you must be given a chance to respond. This WS is not new evidence as it suports your orginal appeal.

Ref exactly whcih signs are wrong, and ask again is the operator either incompetent or is it trying to mislead POPLA into thinking these signs have relevance?

State that the oeprators evidence is clearly flawed or else is deliberately misleading. either way as a reuslt the Operators evidence cannot be relied upon,a nd should not form part of the assessors decision. As the operaotr has no reliable eviffence to submit, the appeal must be upheld.
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aimone
post Fri, 13 Apr 2018 - 10:50
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QUOTE (nosferatu1001 @ Fri, 13 Apr 2018 - 10:11) *
Does the PPC assert they actually sent those documents with the Notice to Hirer? Simple yes or no

If they DID assert they sent them, then state that they are attemptiong to mislead POPLA; these documents were NOT supplied with the original NtH and they cannot now be supplied. Peronally I would add a WS signed under a statement of truth to the comments email - expect them to say you cannot add new evidence, but state that the operator has falsified evidnec eto POPLA so you must be given a chance to respond. This WS is not new evidence as it suports your orginal appeal.

Ref exactly whcih signs are wrong, and ask again is the operator either incompetent or is it trying to mislead POPLA into thinking these signs have relevance?

State that the oeprators evidence is clearly flawed or else is deliberately misleading. either way as a reuslt the Operators evidence cannot be relied upon,a nd should not form part of the assessors decision. As the operaotr has no reliable eviffence to submit, the appeal must be upheld.


No they havent asserted they sent the documents only commented that they "followed procedure" which is vague.

updated:

I confirm these documents were NOT supplied with the original NTH and they cannot now be supplied

I will also add that this evidence cannot be trusted for the points below:

The appeals were sent from someone else’s email not my own, the operator cannot even get the identity correct and has referenced another person as an appellant in the appeal, also written on documentation that was sent by post, which is unprofessional, the appeals were simply sent from someone else email account.

Images that the operator has provided are NOT photographs of the actual car park where the driver parked the vehicle, they have included images of 2 other carparks which are separate car parks, these signs are not visible from the carpark the car was parked in.

“Signage on entrance and within the car park clearly advises all drivers that this is a pay and display car park.” - as you can see from my images i supplied there is no signage on entrance to the carpark.

I requested evidence which showed how visible the signage was from where the car was parked, these have not been supplied, so please ask yourself why they have not supplied the images of the carpark where the vehicle was parked. The operators failure to provide any images of the carpark enforces the point that there was no contract or agreement.

Is the operator incompetent or trying to mislead POPLA into thinking these signs have relevance?, i have detailed various points below as to why these images hold no relevance.

first images of the vehicle: do not show the carpark of any signage near the car, these images are not relevant.

first image of the sign containing the small font parking charge “figure 2”: this sign is nowhere near the carpark, its concealed around 100 metres away from the carpark, around the side of the building, within a separate carpark by the store front, drivers do not pass this sign when entering the site, the parking charge is far too small for a driver to read while passing the sign, i can’t even read it in the image they supplied.

images for point 7 containing 2 signs: when approaching the carpark to turn left into the site, these signs are blocked by the large Matalan sign, turning into the carpark the 2 signs are NOT visible from a right hand drive car and are also obstructed by the grey box in front of them. Again these signs are not in the carpark where the vehicle was parked so they are not relevant.

7. image 4: You can match the backgrounds of this and the first images of the vehicle here to work out where the vehicle was, this sign is facing the opposite direction, this is not relevant at all and is misleading.

the operators evidence is clearly flawed or else is deliberately misleading. either way as a result the Operators evidence cannot be relied upon, and should not form part of the assessors decision. As the operator has no reliable evidence to submit, the appeal must be upheld.
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nosferatu1001
post Fri, 13 Apr 2018 - 11:10
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If they dont say they sent them, explicitly, then you need to state something such as "despite them claiming they have followed proceudre, as the required enclosures were not included with the Notice to Hirer, their inclusion in this evidence pack is puzzling. It is clearly an attempt to mislead POPLA into believing the enclosures were included. As the operator has not arrived at this with clean hands, their evidence is tainted and should be disregarded, and the appeal allowed. "
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aimone
post Fri, 13 Apr 2018 - 11:54
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Ok ive adjusted it and sent it out, thanks again for your help, fingers crossed.
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aimone
post Wed, 9 May 2018 - 09:47
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thanks for the help guys, POPLA refused my appeal on the grounds that the signage was sufficient, the complaint i lodged with BPA, they conducted an investigation and cancelled my parking charge.

"Thank you for your email.

One of our Area Managers conducted a site inspection and confirmed that there is currently no signage in the right hand side car park. We have fed this back to the operator and the operator has advised they have cancelled your parking charge notice and have arranged for signage to be installed in this area. Until the new signage has been installed the operator will issue no further parking charges in this area of the car park."

Thanks again for all your help guys
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ManxRed
post Wed, 9 May 2018 - 10:08
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Well done, but another seriously woeful POPLA decision by the look of it.

Did the POPLA rejection not address their failure to comply with PoFA, and the porkies they told about it? And it comes to something when the BPA agree that the signage is insufficient and then POPLA don't!


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Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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aimone
post Wed, 9 May 2018 - 10:24
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Decision: Unsuccessful
Assessor summary of operator case
The operator’s case is that the appellant failed to purchase the appropriate parking time.

Assessor summary of your case
The appellant has raised several grounds of appeal. These are as follows;

• The appellant states the operator has not complied with the Protections of Freedoms Act (PoFA) 2012.
• The appellant states the operator has not shown that the individual they are pursuing is the driver.
• The appellant states there are no signs in the car park and insufficient notice of the sum of the parking charge.

Assessor supporting rational for decision
Upon a review of the evidence, I am not satisfied that the driver has been identified sufficiently. In order to transfer liability from the driver, to the registered keeper of the vehicle, the strict provisions laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. After reviewing the notice to keeper against the relevant sections of PoFA 2012, I am satisfied that the operator has complied with the act. As such, the keeper is now liable for the charge.

The operator has provided photographic evidence of the terms and conditions, as displayed at the site, which states “Up to 1 hour £1.00; Up to 2 hours £2.00; Failure to comply with the following will result in the issue of a £85 parking charge notice (£50 if paid within 14 days of issue)”. The operator has issued the Parking Charge Notice (PCN) as the appellant failed to purchase the appropriate parking time.

The operator has provided photographic evidence of the vehicle xxxx at the site, on 2 December The appellant has raised several grounds of appeal. I have addressed each of these below.

• The appellant states the operator has not complied with the Protections of Freedoms Act (PoFA) 2012. The appellant states the operator has not shown that the individual they are pursuing is the driver. This point of the appellant’s appeal has already been addressed at the beginning of my report.

• The appellant states there are no signs in the car park and insufficient notice of the sum of the parking charge. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss.

The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in section 18 of the British Parking Association (BPA) Code of Practice. Within section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.

” Furthermore, section 18.3 of the BPA Code of Practice states: “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. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within PoFA 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist.

Therefore, having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant failed to purchase the appropriate parking time, and therefore did not comply with the terms and conditions of the car park. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

Popla basically sided with the operator on everything, BPA were a pleasure to deal with tbh
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nosferatu1001
post Wed, 9 May 2018 - 10:31
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Wow, POPLA managed to confuse keeper with hirer.

Compain to POPLA. Assuming you appeal AS HIRER then that is a BIG mistake.
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ManxRed
post Wed, 9 May 2018 - 10:31
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That's laughable. How young are POPLA assessors these days? Five?


--------------------
Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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nosferatu1001
post Wed, 9 May 2018 - 10:36
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THeres one on MSE right now, where simultaneously they summarise the appellants case, then state they havent received the document containign the appellants case.
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