PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

Euro Car Parks, NTK
flossykazzie
post Fri, 6 Mar 2020 - 14:29
Post #1


Member


Group: Members
Posts: 82
Joined: 15 Jan 2014
Member No.: 67,982



Looking for advice on the best way to proceed.

NTK from Euro car parks arrived today, Date of Event 26/02/2020, date issued 04/03/2020.

No PoFa paragraph on the back of it, was for 1 hour overstay.

Is it best to appeal it please.

Many thanks.
Go to the top of the page
 
+Quote Post
2 Pages V  < 1 2  
Start new topic
Replies (20 - 31)
Advertisement
post Fri, 6 Mar 2020 - 14:29
Post #


Advertise here!









Go to the top of the page
 
Quote Post
flossykazzie
post Tue, 24 Mar 2020 - 07:05
Post #21


Member


Group: Members
Posts: 82
Joined: 15 Jan 2014
Member No.: 67,982



So I have looked at the NtK from Euro Car Parks, and I do not understand at the moment how it breaches the legislation in PoFa.

Because they have stated that after 28 days they transfer the liability to the Keeper, is that not the "invitation"

Maybe I am being thick, or maybe I need more lessons, any pointers will be of great help.

Many thanks.
Go to the top of the page
 
+Quote Post
ostell
post Tue, 24 Mar 2020 - 09:41
Post #22


Member


Group: Members
Posts: 12,638
Joined: 8 Mar 2013
Member No.: 60,457



Here's POFA read through paragraph 9 and see if the wording that is required is there. Section 2 starts with "The notice must". Where is the word "invite" on the NTK?

This post has been edited by ostell: Tue, 24 Mar 2020 - 09:46
Go to the top of the page
 
+Quote Post
The Rookie
post Tue, 24 Mar 2020 - 10:27
Post #23


Member


Group: Members
Posts: 44,445
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



QUOTE (flossykazzie @ Mon, 23 Mar 2020 - 12:49) *
as in the NtK was issued outside of the 14 days.

The Ntk in this case has been issued within the 14 day time frame

There is NOTHING in PoFA about when an NtK should be issued though is there?

You need to read it critically, not skim it. It's legislation and is precise!


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
Go to the top of the page
 
+Quote Post
flossykazzie
post Tue, 24 Mar 2020 - 11:31
Post #24


Member


Group: Members
Posts: 82
Joined: 15 Jan 2014
Member No.: 67,982



Thanks Ostell and Rookie,

I have been reading it in detail, it is making my mind boggle, I'm still not sure what it all means.

I will read it again and hopefully at some point it will start to gel and make sense.

I do feel hopeless at the moment, sorry!!
Go to the top of the page
 
+Quote Post
flossykazzie
post Tue, 24 Mar 2020 - 12:44
Post #25


Member


Group: Members
Posts: 82
Joined: 15 Jan 2014
Member No.: 67,982



Does it make sense if I make a complaint to BPA about ECP breaching the PofA legislation 9 (2) (a) and 9 (2) (e), or should I just start the POPLA appeal.

If it's a crazy idea please don't shout at me.

Many thanks.
Go to the top of the page
 
+Quote Post
ostell
post Tue, 24 Mar 2020 - 14:59
Post #26


Member


Group: Members
Posts: 12,638
Joined: 8 Mar 2013
Member No.: 60,457



Start the POPLA appeal. You can post it here for critique before you send. Remember to question their right to operate and the validity of the signs.
Go to the top of the page
 
+Quote Post
The Rookie
post Tue, 24 Mar 2020 - 15:17
Post #27


Member


Group: Members
Posts: 44,445
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



I don't think you understand PoFA. You can't breach PoFA can you?

If you comply with the requirements you an hold the keeper liable, if you don't you can't.

Nothing says they have to comply does it? So given they don't have to what would be your grounds for complaint to the BPA?


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
Go to the top of the page
 
+Quote Post
Steve_999
post Tue, 24 Mar 2020 - 15:29
Post #28


Member


Group: Members
Posts: 1,240
Joined: 12 Jun 2008
From: West Sussex
Member No.: 20,304



QUOTE (The Rookie @ Tue, 24 Mar 2020 - 15:17) *
I don't think you understand PoFA. You can't breach PoFA can you?

If you comply with the requirements you an hold the keeper liable, if you don't you can't.

Nothing says they have to comply does it? So given they don't have to what would be your grounds for complaint to the BPA?


Quite right, but I think the OP needs to ensure they clearly state that ECP cannot pursue them as they have failed to comply with PoFA and they can only pursue the driver.
Go to the top of the page
 
+Quote Post
flossykazzie
post Tue, 24 Mar 2020 - 15:47
Post #29


Member


Group: Members
Posts: 82
Joined: 15 Jan 2014
Member No.: 67,982



Am I right in thinking that ECP failed to comply with PoFA because they did not "invite" the RK to pay the PCN as this wording was not included in the NTK, so therefore they can only pursue the "driver".
Go to the top of the page
 
+Quote Post
flossykazzie
post Wed, 25 Mar 2020 - 12:12
Post #30


Member


Group: Members
Posts: 82
Joined: 15 Jan 2014
Member No.: 67,982



Hi All

So the advice is to look around and find a winning POPLA appeal and copy that to your own circumstances, I have found this one and it seems to be more or less identical to my situation.

Could you please advise on whether it is a good enough one to submit in my appeal.

Many thanks.

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued by Euro Car Parks Ltd. I would like to have the parking charge notice cancelled based on the following grounds:

1) No keeper liability
2) BPA Code of Practice - non-compliance to guidelines
3) No evidence of period parked
4) No landowner authority
5) Lack of signage- unclear signage
6) The ANPR system is neither reliable nor accurate


1) No keeper Liability - The Notice to Keeper is not compliant with the Protection of Freedoms Act (POFA) 2012, no 'Invitation to Keeper'.

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

The non-compliant wording of this NTK is fatal for 'keeper liability'.

- Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver''

- The NTK fails in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''

- Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.

Consequently, ECP has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If ECP should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

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.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

(b)has given a notice to keeper in accordance with paragraph 9.

The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. In page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.

2) BPA Code of Practice - non-compliance to guidelines:
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 contains two photographs of the vehicle number plate. They clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite ECP to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.

3) No evidence of period parked. The NTK clearly states the vehicle was parked during the relevant period. POFA 2012 Sched 4 Para 9 refers at numerous times to the period of parking. By virtue of the nature of a ANPR system recording only entry and exit times, ECP are not able to definitively state the period of parking. Contrary to the mandatory provisions of the BPA code of practice, there is no record to show that the vehicle was parked at all, but could have in fact used the mandatory grace periods when driving in to drop off a passenger and rejecting the parking terms. The exit time given on the NTK could in fact have been taken from a second visit, for example, in order to collect a passenger as part of a drive in/drive out event (This has been well documented and sometimes referred to as the ‘double dip’ phenomenon). The grace periods are a minimum of 10 minutes to leave the car park and a similar period to cover the period after the vehicle parks, finds signage, reads the signage and decides whether to accept or reject the terms offered within.

4)No landowner Authority:

I question ECP’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ECP to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question ECP’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that ECP is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that ECP are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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 put ECP to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 20 minutes in a car park.
I require ECP to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

5) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible. For this Please see photograph 1

The BPA Code of Practice states that- “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. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.“

There were no conspicuous signs throughout the site. I put ECP to strict proof on this point. As well as a site map they must show photographs of the signs as the driver would see them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car park, the entrance to the car park, or the layout of the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore, as stated, a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore the driver has not been identified and I have no obligation to assist an operator in this regard, even if I was certain which of several drivers could have used the car that day. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

(3) ''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...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.''

In fact, their signs are not visible from a car seat before parking and the words are completely unreadable and incapable of forming a contract before the act of parking (it is trite law that afterwards - after parking in this case - is too late).

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.

6) The ANPR system is neither reliable nor accurate.

The ECP evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. In any case it is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic. If they in fact offered instead a pay and display system, which the driver could only access after parking, and which is when the actual action and period of parking would commence, i.e. when the vehicle is stationary, then only at that point would the clock be able to be started in order to measure a parking period, rather than the arrival at the car park entrance. The exit photo image of the rear number plate cannot be evidence of actual 'parking time' at all, and has not been shown to relate to the same singular parking event.

Additionally you cannot discount that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website; www.britishparking.co.uk/How-does-ANPR- work

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require ECP to provide records with the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of the vehicle number plate allegedly entering and leaving the car park at specific times (not shown within the photographic images), it is vital that ECP produces evidence in response to these points.

In addition to showing their maintenance records, I require ECP to show evidence to rebut the following assertion. I suggest that in the case of this vehicle being in that car park, a local camera took the image but a remote server added the time stamps. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photo images, I put ECP to strict proof to the contrary.

I respectfully request that this parking charge notice appeal be allowed and await your decision.


Obviously I would go through it with a fine tooth comb and edit it.
Go to the top of the page
 
+Quote Post
flossykazzie
post Wed, 25 Mar 2020 - 21:31
Post #31


Member


Group: Members
Posts: 82
Joined: 15 Jan 2014
Member No.: 67,982



Sorry to be a pest and to have to ask again, but is the POPLA appeal with a bit of tweaking any good.

Many thanks.
Go to the top of the page
 
+Quote Post
The Rookie
post Thu, 26 Mar 2020 - 09:38
Post #32


Member


Group: Members
Posts: 44,445
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



The code of practice is just that, not guidelines.

If you challenge the signage you must show this via a map and or photos. We won my daughters case because we could show that she passed no sign at all on her way in (by car) and out (by foot) of the car park. We used a Google satellite view photo marked up to show this. PE produced a signage 'plan' with signs indicated that didn't exist and we challenged that by showing they hadn't executed what they planned, appeal upheld.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
Go to the top of the page
 
+Quote Post

2 Pages V  < 1 2
Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Sunday, 29th March 2020 - 05:37
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.