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Harefield Retail Park - Uxbridge PCN - Euro Car Parks
s1214lang
post Wed, 17 Jan 2018 - 21:45
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Hi all

First timer here. Would like to thank anyone in advance who takes the time out to read this topic and offer advice.

Received a PCN from Euro Car Parks for overstaying at the Harefield Retail Park - Uxbridge. Overstayed by 11 min 52 sec (they put down seconds as well now in entry and exit time). Have gone through other posts at Harefield Retail Park, and am putting together an appeal. Any advice and help will be appreciated.

Important point: The PCN did not arrive within 14 days of the parking incident. Incident was on 30/12/2017. Date issue (and I assume posted) of PCN was 11/01/2018, which was a Thursday. Taking into account 2 working days for postage (which will be 12/01/18 - Friday, and 15/01/2018 - Monday), my letter arrived on Day 16.

Another point: Not sure if relevant, but the car park was nearly empty at the time of parking, mainly considering it was quite early on a Saturday morning (before 10am).

Attached is the PCN.



Should I appeal on the following grounds as the Registered Keeper?

1) No Genuine Pre-Estimate of Loss/Punitive Charge
2) Contractual Authority
3) BPA Code of Practice - non-compliance to guidelines
4) POFA 2012 - non-compliance to guidelines

Also, should I mention about 'stay' vs 'parking'; grace times (considering I overstayed by only under 12 minutes); signage (tiny text amount, usage of ANPR)? (Got all these from other posts about Harefield Retail Park). Or should I leave these for the POPLA appeal?

Have copied the appeal below from various sources, what changes (if any) would you recommend I make on this (apart from changing the overstayed times and dates to my case):

Vehicle Registration Number xxxxxxxx
PCN Reference xxxxxxxxxxx
Issued by Euro Car Parks Limited

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice you have issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1) No Genuine Pre-Estimate of Loss/Punitive Charge
2) Contractual Authority
3) BPA Code of Practice - non-compliance to guidelines
4) POFA 2012 - non-compliance to guidelines

1) No Genuine Pre-Estimate of Loss/Punitive Charge:
According to Euro Car Park Limited's ANPR system, my car was parked for a 1 hour 30 minutes. The car park at Harefield Retail Park - Uxbridge allows customers to park free of charge, under tort of trespass law. As the driver was a customer for both Wickes and Halfords on the day in question they were not trespassing, neither have the companies lost out on any parking charges as the car park is free. £90 is quite clearly not a genuine pre-estimate of their loss or loss to the landowner. If Euro Car Parks Limited believes their charge is a genuine pre-estimate of loss to the landowner (Montagu Evans LLP), I request they produce a detailed and itemised breakdown of how this is calculated. The charge is punitive and clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable. The charge of £90 is clearly grossly disproportionate to the purported loss.

2) Contractual Authority:
Euro Car Parks Limited states that they have written authority to operate and issue parking charge notices on the site Harefield Retail Park - Uxbridge from the landowner. I request Euro Car Parks Limited to provide evidence that proves that this statement is true. It has to be an up-to-date and signed contract which shows they are lawfully entitled to demand money from the driver/registered keeper (in the event the driver has not been disclosed). I would also like to clarify that this should be an actual copy and not just a document stating such a contract exists. Without evidence of such the perceived "contract" between the driver and Euro Car Parks Limited is null and void, as in common law a contract can only be formed between the driver and the landowner.

3) 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. Neither of these images contain a date and time stamp on the photographs nor do they clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The time and date stamp has been inserted into the letter underneath (but not part of) the photographs. The images have also been cropped to only display the number plate, as these are not the original images I invite Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp.

4) The Protection of Freedoms Act 2012 requires that the notice must be delivered to the keeper within 14 days of the Date of Issue. The first notice arrived on Wednesday 6th January 2016 and so does not comply within the required timeframe.

If you do reject the challenge and insist on taking the matter further I must inform you that I may claim my expenses from you. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you agree to pay these costs when I prevail.

Any communication that does not either confirm cancellation or include a POPLA verification code/IAS appeal information will be reported to the BPA/IPC as a breach of their Code of Practice - the BPA recently issued guidance to all members to remind them of this fact. Such communication may also be deemed harassment and pursued accordingly.

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

Mr xxxxx



Once again, will really appreciate any help and advice on this. Thanks a lot.

EDIT: Added sentence about car park being nearly empty.

This post has been edited by s1214lang: Wed, 17 Jan 2018 - 22:15
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post Wed, 17 Jan 2018 - 21:45
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Dave65
post Wed, 17 Jan 2018 - 22:54
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Did you make any purchases at the retail park?
If so maybe worth asking retailer if they will cancel PCN as this is quickest.
Empty car park cuts no cloth with these cretins, this is how they make their grotes.

This post has been edited by Dave65: Wed, 17 Jan 2018 - 22:57
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s1214lang
post Wed, 17 Jan 2018 - 23:04
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QUOTE (Dave65 @ Wed, 17 Jan 2018 - 22:54) *
Did you make any purchases at the retail park?
If so maybe worth asking retailer if they will cancel PCN as this is quickest.
Empty car park cuts no cloth with these cretins, this is how they make their grotes.


I am afraid not. Thank you for your reply.

This post has been edited by s1214lang: Wed, 17 Jan 2018 - 23:06
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ostell
post Wed, 17 Jan 2018 - 23:10
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Where did you get that appeal ??? It is hopelessly out of date, You posted without reading, you even forgot to change the 2016 date that is mentioned and GPEOL is a no no.

Yours is a simple appeal: Failed to deliver within the required 14 days. Event 30 December, posted 11 January, a Thursday. Posted on a Thursday then POFA assumes 2 working days to be delivered therefore assumed to be delivered on Monday 15 January. 30/12 to 15/01 = 16 days. Search for a BOGOFF response on here.

If you get a POPLA code back then similar appeal to POPLA.
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s1214lang
post Thu, 18 Jan 2018 - 00:00
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QUOTE (ostell @ Wed, 17 Jan 2018 - 23:10) *
Where did you get that appeal ??? It is hopelessly out of date, You posted without reading, you even forgot to change the 2016 date that is mentioned and GPEOL is a no no.

Yours is a simple appeal: Failed to deliver within the required 14 days. Event 30 December, posted 11 January, a Thursday. Posted on a Thursday then POFA assumes 2 working days to be delivered therefore assumed to be delivered on Monday 15 January. 30/12 to 15/01 = 16 days. Search for a BOGOFF response on here.

If you get a POPLA code back then similar appeal to POPLA.


Thank you very much for your reply. I got that appeal of some old PCN at this particular car park (from a previous post), and didn't actually change anything on it (even dates). I wanted to ensure it would still be valid, and which I am guessing it isn't.

So no GPEOL, right?
What about Contractual Authority? And BPA code of Practice?

And my appeal, regarding failure to deliver within the required 14 days, will still come under POFA 2012 right? Also, excuse my ignorance, what exactly is BOGOFF? Have Googled it and have searched for it on the website. I am guessing it is just "bog off"?

What would I search for when searching for a 'BOGOFF response' for my case?

Thanks again.
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ostell
post Thu, 18 Jan 2018 - 08:49
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The word means exactly what it says and you should find it by searching in the forum search box at the bottom left of the page.

I am the keeper of vehicle xxxxx and am in receipt of your Nortice to Keeper xxxxx. You have failed to deliver the Notice to keeper within the 14 days mandated by paragraph 9 of the Protection of Freedoms Act 2012. May I point you to sub paragraphs 9 (4) and 9 (6). As you posted the NTK on a Thursday it is not deemed delivered unti 2 working days later which would be Monday 15th at the earliest. I, as the keeper, therefore have no liability for the actions of the driver at the time of the event. There is no legal requirement for the driver to be identified and I will not be doing so. I do not expect to hear from you again other than to confirm that there will be further action taken against the keeper.

To continue this matter and state that the keeper can be assumed to be the driver using the case of Elliot v Loake would be vexatious as the courts have refused you this argument many times.
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s1214lang
post Thu, 18 Jan 2018 - 09:22
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QUOTE (ostell @ Thu, 18 Jan 2018 - 08:49) *
The word means exactly what it says and you should find it by searching in the forum search box at the bottom left of the page.

I am the keeper of vehicle xxxxx and am in receipt of your Nortice to Keeper xxxxx. You have failed to deliver the Notice to keeper within the 14 days mandated by paragraph 9 of the Protection of Freedoms Act 2012. May I point you to sub paragraphs 9 (4) and 9 (6). As you posted the NTK on a Thursday it is not deemed delivered unti 2 working days later which would be Monday 15th at the earliest. I, as the keeper, therefore have no liability for the actions of the driver at the time of the event. There is no legal requirement for the driver to be identified and I will not be doing so. I do not expect to hear from you again other than to confirm that there will be further action taken against the keeper.

To continue this matter and state that the keeper can be assumed to be the driver using the case of Elliot v Loake would be vexatious as the courts have refused you this argument many times.


Thank you very much ostell. Just to clarify, I'll be appealing only on this grounds right?
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nosferatu1001
post Thu, 18 Jan 2018 - 09:33
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Yes, because they will just reject anyway.
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s1214lang
post Thu, 18 Jan 2018 - 10:18
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QUOTE (nosferatu1001 @ Thu, 18 Jan 2018 - 09:33) *
Yes, because they will just reject anyway.


Thanks for your reply. Should I mention on my appeal that they should provide me with a POPLA code, if rejected? Or not mention it at all, and they'll provide one anyway?
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ostell
post Thu, 18 Jan 2018 - 10:33
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Don't mention POPLA, they know they should send it. Will be a complaint to the BPA if they don't.
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s1214lang
post Thu, 18 Jan 2018 - 13:00
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QUOTE (ostell @ Thu, 18 Jan 2018 - 10:33) *
Don't mention POPLA, they know they should send it. Will be a complaint to the BPA if they don't.

Great cheers. Will send the appeal later on today, and keep you guys posted.

Thanks once again for the advice and help.
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s1214lang
post Wed, 7 Feb 2018 - 20:07
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Hi all

Update for this. Received a reply from Euro Car Parks, with obviously a rejection of the appeal. Below is the document I received. Looks like they haven't even read my appeal, and reiterate that liability will remain with the keeper.





How should I structure my POPLA appeal now?

Thank you very much for reading and any advice.
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cabbyman
post Wed, 7 Feb 2018 - 20:36
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Search for my thread 'ECP Shell Gatwick' with the fairly standard POPLA appeal. Adapt to your circumstances and post here for checking. ECP normally decline to contest.


--------------------
Cabbyman 8 PPCs 0
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ostell
post Wed, 7 Feb 2018 - 20:49
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Search for other POPLA appeals as a guide but mske sure you put the POFA failure as the first item. Spell it out as though you were writing for 5 year olds.
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s1214lang
post Wed, 7 Feb 2018 - 22:00
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QUOTE (cabbyman @ Wed, 7 Feb 2018 - 20:36) *
Search for my thread 'ECP Shell Gatwick' with the fairly standard POPLA appeal. Adapt to your circumstances and post here for checking. ECP normally decline to contest.




QUOTE (ostell @ Wed, 7 Feb 2018 - 20:49) *
Search for other POPLA appeals as a guide but mske sure you put the POFA failure as the first item. Spell it out as though you were writing for 5 year olds.


Thanks for both the replies. I'll go through the posts and compile an appeal together. Will post it back here for review.

Thanks again
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s1214lang
post Tue, 13 Feb 2018 - 22:50
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Right, have adapted a POPLA appeal. Will be grateful if someone can please proofread it. Thanks.

A few clarifications:
1. According to 9(2)(b) of POFA: The notice must - inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full
I've gone through the PCN, but can't find BOTH the statements. They don't mention that the parking charges have not been paid in full. Can you please see if I've missed this somewhere? If so, is this contrary to the requirement 9(2)(b)?

2. According to 9(2)(e)(i) of POFA, they ...have to invite the keeper - (i) to pay the unpaid parking charges; or ... . I can't find this on the PCN. 9(2)(e)(ii) is mentioned though. Is this again contrary to the requirement 9(2)(e)?

3. The wording on the PCN does not match that in 9(2)(f). This is contrary right?

4. Finally, regarding date POSTED and GIVEN [9(2)(i)]. The GIVEN date is not explicitly stated on the PCN. However they do mention, that date GIVEN is presumed to be the second working day after the Date Issued. Is it contrary to 9(2)(i)?

The appeal below is worded assuming all the above 4 points are contrary to the mentioned points.

POPLA Appeal:

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 POFA 2012, was served too late and no 'Notice to Driver' was served whilst the car was stationary.

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.

I set out below the requirements for a 'Notice to Driver' as set out in Schedule 4 which clearly requires either:

- Under paras 7 & 8: a windscreen PCN (in person, issued on the car before it leaves the site) followed by a postal 'Notice to Keeper' served no sooner than 29 days later,

OR

- Under paragraph 9: a compliant postal 'Notice to Keeper' to be served within 14 days of the event.

Neither of these two mandatory routes were followed in this case. Paragraph 7 states:

7(1) A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(4)The notice must be given—

(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and

(b)while the vehicle is stationary,

by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.


No such Notice to Driver was served. Instead, a hybrid document the operator called a 'PCN' was posted. This neither matched the mandatory requirements of paragraph 7 as a 'Notice to Driver' (because it was posted, not served whilst the vehicle was stationary) nor does it meet the strict requirements of paragraph 9 if it was intended to be a 'Notice to Keeper' (NTK).

Any PCN/NTK must arrive by day 14 after the parking event. The late timing and non-compliant wording of this NTK is fatal for 'keeper liability'.

In terms of wording:

- Contrary to the requirements of Paragraph 9(2)(b), the Notice to Keeper did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.

- 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.

In any case, as explained above, the document described as a 'NTK' arrived too late - as if it was one which followed a windscreen PCN - yet this operator has failed to apply any windscreen Notice to Driver. 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 do 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 Schedule 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 longer than the time allowed PLUS the mandatory grace periods. These 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. An alleged 11 minutes 52 seconds overstay does not meet the binding code of practice. There is no evidence that the vehicle was ‘parked’ for 71 minutes and 52 seconds.

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 60 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.



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).

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

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. To capture a vehicle entering Harefield Retail Park car park and actually crossing the boundary into the land in question, it would appear that the only conceivable location for a camera would be directly across the road from the entrance therefore outside the car park and taken from public land.
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 a pay and display system which the driver can only access after parking, and which is when the actual action and period of parking commences. i.e. when the vehicle is stationary, and when the clock should start from. 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 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.



Will really appreciate any feedback.
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ostell
post Wed, 14 Feb 2018 - 10:10
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So your first indication was a Notice to Keeper through the post so remove any reference to other paragraphs in POFA other than 9. There is no requirement to have a windscreen ticket so remove reference to that and anything else about requirements for windscreen tickets and notices to driver.

Make your first POFA reference the fact that it was not delivered within the relevant period of 14 days, contrary to 9 (4). Spell it out to POPLA as though they were 5 year olds. NTK posted on 11/1/18, a Thursday and therefore not delivered until 2 working days later, detailed in 9 (6), and therefore not delivered until Monday 15/1/18 at the earliest. Event date is 30/12/17 so served after 16 days instead of the required 14 days.

making this the first point means that they should just accept that and not continue down the rest.

Yes. 9 (2) (e) has not been given correctly.
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s1214lang
post Wed, 14 Feb 2018 - 22:24
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QUOTE (ostell @ Wed, 14 Feb 2018 - 10:10) *
So your first indication was a Notice to Keeper through the post so remove any reference to other paragraphs in POFA other than 9. There is no requirement to have a windscreen ticket so remove reference to that and anything else about requirements for windscreen tickets and notices to driver.

Make your first POFA reference the fact that it was not delivered within the relevant period of 14 days, contrary to 9 (4). Spell it out to POPLA as though they were 5 year olds. NTK posted on 11/1/18, a Thursday and therefore not delivered until 2 working days later, detailed in 9 (6), and therefore not delivered until Monday 15/1/18 at the earliest. Event date is 30/12/17 so served after 16 days instead of the required 14 days.

making this the first point means that they should just accept that and not continue down the rest.

Yes. 9 (2) (e) has not been given correctly.


Thank you very much for your feedback and advice.

How's this now:

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 (NTK) is not compliant with the Protection of Freedoms Act 2012 ("POFA") and was not served within the relevant period of 14 days, contrary to paragraph 9 (4) in Schedule 4 of the POFA. The NTK was issued/posted on 11/01/2018, a Thursday, and therefore not delivered until 2 working days later, detailed in paragraph 9 (6), and therefore not delivered until 15/01/18, Monday, at the earliest. Date of Event is 30/12/2017, so NTK served after 16 days instead of the required 14 days.

Although Schedule 4 of the 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 notice issued by the operator, called a Parking Charge Notice (PCN), does not meet the strict requirements of paragraph 9 if it was intended to be a Notice to Keeper (NTK). The late timing and non-compliant wording of this NTK is fatal for 'keeper liability'.

In terms of wording:

- Contrary to the requirements of paragraph 9 (2) (b), the Notice to Keeper did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.

- 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— (i) to pay the unpaid parking charges; or (ii) 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''. BOTH the above prescribed statements must be stated in the NTK and they were not.

- The NTK fails in the prescribed requirement of paragraph 9 (2) (f) - 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— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) 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.

In any case, as explained above, the document described as a 'NTK' arrived too late. 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"
Paragraph 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:
Paragraph 6 (1): 'The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

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

The operator has failed to meet this condition for keeper liability due to the multiple flaws in the NTK. 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 (CoP) 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 do not 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 Schedule 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 longer than the time allowed PLUS the mandatory grace periods. These 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. An alleged 11 minutes 52 seconds overstay does not meet the binding code of practice. There is no evidence that the vehicle was ‘parked’ for 71 minutes and 52 seconds.

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 60 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.

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:

Paragraph 2 (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).

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

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. To capture a vehicle entering Harefield Retail Park car park and actually crossing the boundary into the land in question, it would appear that the only conceivable location for a camera would be directly across the road from the entrance therefore outside the car park and taken from public land.

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 a pay and display system which the driver can only access after parking, and which is when the actual action and period of parking commences. i.e. when the vehicle is stationary, and when the clock should start from. 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 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.
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s1214lang
post Sat, 17 Feb 2018 - 14:22
Post #19


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Can someone please proofread my appeal draft above and let me know it its ok to send.

Many thanks and I'll really appreciate it.
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nosferatu1001
post Sat, 17 Feb 2018 - 21:36
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I don’t have time to proof read. That’s your task.

As long as you’ve got the right arguments in, and you can attach evidence such as photos to show poor signs, you have the best chance. Remember, pdf upload under “other”
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