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ECP PCN Advice, ECP PCN Letter / appeal
Snout
post Thu, 3 May 2018 - 13:51
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Hi, thank you in advance for taking a look at this. I hope to get some useful & constructive feedback on the below letter I've cobbled together for a PCN that has arrived. I've also attached / linked to the signage and the PCN letter.



Firstly, as keeper of the vehicle, I would like to pass this communication to xxxxx who will act on my behalf.

With reference to your Parking Charge Notification xxxxxx, xxxxxx I believe it was incorrectly issued. Your invitation for the driver to be named is respectfully declined, which I understand is not required of the keeper. The parking charge notice issued by Euro Car Parks Ltd. is appealed on the following grounds and should be cancelled.

1. Frustration of Contract / Equality
2. Grace Period / ANPR
3. Photographs / ANPR
4. Additional Information

1. Frustration of contract / Equality

One passenger, suffers from terminal cancer. On the day in question this elderly female, became short winded, tired and found it very difficult to continue walking. It was necessary to stop for some time which caused the overstay. This person is in possession of a blue badge for her condition which was clearly displayed in the vehicle. A 3rd party witness in addition to the passengers in the vehicle at the time are available to provide written witness statements if necessary. In addition to the Equality Act 2010 where it states “reasonable adjustments” for those needing it, I would also urge you to consider that of the recommendation of time to read signage (BPA CoP), plus the fact there was also a baby (and equipment (pram, etc) that also needed to be loaded and unloaded.

2. Grace period / ANPR Equipment

Whilst effective at monitoring the time between observations of registration plates, ANPR is flawed for monitoring the length of time a car was parked. The ANPR cameras are parked at the entrance and exit of the car park, recording when a car passed it. However, the time between the two photographs would be the time parked, PLUS the time looking for a space, time reading the signage and the time leaving the car park. In busy car parks, of which this is, this adds up to quite a period of time and this vehicle spent quite a while searching for a suitable bay and waiting to exit onto the road. The payment transaction was at 11:14am yet you base the PCN on an entry time of 11:06am which contradicts the BPA CoP (see #1). You are also inconsistent with the use of the word ‘parking’ which is misleading. An example of such is on the PCN itself “the P&D/permit purchased did not cover the date and time of parking”.

It is misleading to assume entry and exit. A person could understand this to be entry and exit of the parking bay to which they rent for the duration. Which makes sense as driving around the car park and failing to find a suitable space would not breach the T&C’s. It is also questionable to assume at what point the exit is positioned and if other vehicles temporarily preventing exit are considered. In order to meet the transparency requirement, the signage should state not only the timing is from the point of entry and exit to the car park but identify where the car park / ‘parking’ boundary is. If that is not done, how could any motorist have reasonably known?

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 synchronized with the timer which stamps the photo images to ensure the accuracy of the ANPR images. Having said that, the parking charge notice issued (and one used for judgement) is founded entirely on 2 photos of the vehicle number plate allegedly entering and leaving the car park at specific times (no indication of car park shown within the photographic images).

3. Photographs / ANPR

No evidence of period parked. The parking charge notice clearly states the did not cover the date and time of parking. PoFA2012 Sched 4 Para 9 refers at numerous times to the period of parking. By virtue of the nature of an 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 20 minutes overstay does not meet the code of practice. Additionally, there is no evidence that the vehicle was ‘parked’ for the time stated.

The BPA Code of Practice clearly states in section 20.5a that photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. The photographs you have provided on the Parking Charge Notice, and the ones used for judgement in this case may have been digitally altered to show only the registration plate, they also have no time stamp. Nor do they make any reference to the carpark.

In addition to showing the maintenance records, it is requested for ECP to show evidence to rebut the following assertion. It is suggested 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 any time stamp (no stamp provided on your evidence) 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, it is put to ECP to strict proof to the contrary.

4. Additional Information

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

Please supply evidence that the landowner is a member of the AOS and meets all the compliance conditions.

If you reject the challenge and insist on taking the matter further then this will also be appealed to POPLA (therefore, please provide a POPLA Code) where you will be expected to provide your full contract with the landowner. You should be informed that a claim for expenses from you may be issued. The expenses that may be claimed are not exhaustive but may include the cost of man hours, stamps, envelopes, travel expenses, legal fees, administration fees, etc. By continuing to pursue the keeper you agree to pay these costs when the keeper prevails.

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.

As stated in your Parking Charge Notice, this appeal and associated costs / dates will now place on hold.






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post Thu, 3 May 2018 - 13:51
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ostell
post Thu, 3 May 2018 - 16:24
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What about missing period of parking?
Did it get to you within 14 days? The dates have been removed
9 (2) (e) is not in the prescribed format
9 (2) (f) is not as prescribed.
9 (2) (i) is not there
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Snout
post Thu, 3 May 2018 - 21:36
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Hello, thanks for the quick reply.
Yes, it arrived within 14 days. The alleged incident took place on 18 April and I got the letter on the weekend just gone

Terribly sorry, but I don't fully understand your other comments in the post. Could you offer a bit more detail?

9 (2) i - is on the paper (it says 25th for both date issued and date). The blanks are what I cut it as I wasnt sure if to leave on or not.

I just read the pofa parts you mentioned. What is specifically wrong?

Does 7 (4) b have any relevance?

Thanks
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SchoolRunMum
post Thu, 3 May 2018 - 22:56
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I'd stop over thinking it, and just send the usual template appeal from the MSE parking forum NEWBIES FAQS thread, to get a POPLA code. In the meantime, read any other Euro Car Parks POPLA appeals on this or MSE forum. Google the words in bold and you will find threads galore from both forums, only read POPLA appeal examples from 2017/18. NOT OLDER ONES.

Preparation is key, these are easy enough to win at POPLA and if it;s rejected, so what, no-one PAYS Euro Car Parks!
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Snout
post Fri, 4 May 2018 - 05:31
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Hi, thanks. I'm not over thinking it... I have a letter there which I'd like comments on if poss. Ostell was good to respond although I didn't quite get everything he suggested. This is my preparation and the challenge is to get a ECP to cancel it rather than go to popla.
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nosferatu1001
post Fri, 4 May 2018 - 08:18
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ECP dont cancel, until POPLA tells them to.

e and f do not use the precise wording required, and do not convey quite the same meaning as a result. For example an in e its a service address, and it odes not invite the keeper to pay the charge.
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Snout
post Fri, 4 May 2018 - 08:29
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@nosferatu1001 you helped me defeat them at 1st attempt last year. Are they more savvy these days?

I guess what I'm trying to ascertain here is whether or not I've built up a decent letter or if I'm way off. The letter is based on the victorious effort last time but this is a different car park with pay and display rather than a free one
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nosferatu1001
post Fri, 4 May 2018 - 08:51
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Not more savvy, they just seem to have stopped cancelling. Oresumably realising their days could be numbered theyre trying to get as much cash as possible now. Plus "do not contest" at POPLA means they avoid the POPLA fee...
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Snout
post Fri, 4 May 2018 - 09:18
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i see... if you have a few mins, would you mind having a quick look at the letter and offer your advice? Obviously, I'd like to get it sent as soon as poss, but I appreciate you must have much better things to be doing with your free time :-)
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nosferatu1001
post Fri, 4 May 2018 - 09:44
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Frankly I dont htink theyll bother reading it, but its worht a try.

I dont really think its worth putting effort into a first appeal. they have literally zero incentive to cancel tickets right now.
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Snout
post Fri, 4 May 2018 - 21:20
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Thanks... I've made a few tweaks and sent it. Will be in touch no doubt when they send their response.
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Snout
post Wed, 23 May 2018 - 13:40
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Hi... as predicted, rejected as follows:

Thank you for your letter of appeal. The details of the Parking Charge Notice are as follows:
Parking Charge Notice Number: xxxxxxxxxx Date of Issue: 18/04/2018
Vehicle Registration Mark: xxxxxxxx Time of Issue: 15:26:06
Car Park: Thompson Street - Manchester

Breach of Terms and Conditions:
the P&D/permit purchased did not cover the date
and time of parking

Having carefully considered the evidence provided by you we have decided to reject your appeal for
the following reasons:
• The car park is operated by Automatic Number Plate Recognition (ANPR). Cameras capture
an image of vehicles entering and leaving the car park and calculate their length of stay on
site.
• Signage is clear drivers must purchase a valid pay and display ticket for the full duration of
their stay.
• Please be advised that there are a number of signs around the car park indicating the
restrictions of the site and it is the responsibility of the driver to read them when parking.
• A pay and display ticket matching your vehicle registration was purchased for £3.50 - this
would have entitled your vehicle to park for up to 4 hours according to the clearly displayed
tariff.
• Your vehicle entered at 11:06 and exited at 15:26, a total stay of 4 hours and 20 minutes.
• The P&D/permit purchased did not cover the date and time of parking and therefore the
notice has been issued correctly and will remain payable.
• On private land, and this includes private land owned by public bodies, it is the driver who is
liable any charges arising from a trespass or for not complying with the rules for parking,
which in most cases is simply a breach of contract, and it is the driver who is trespassing or
breaches the contract.
• Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the
registered keeper’s responsibility to inform of the full name and address within 28 days
beginning with the day after the notice was given. If the full amount remains unpaid, under
Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’), Euro Car Parks have the right
subject of the Act to recover from the keeper of the vehicle at the time it was parked so much
of that amount which remains unpaid.
• The Protection of Freedoms Act (POFA) does not alter the principle of driver liability.
What it does do, is to allow proceedings against the registered keeper for unpaid parking

charges when the landowner or their agent, the parking operator does not know who the
driver was at the time.
• The creditor/operator must follow the procedures set out in POFA Schedule 4 to achieve the
benefits of keeper liability.
• Euro Car Parks is a member of the BPA which is an Accredited Trade Association with the
DVLA and has an approved Code of Practice.
• Please be advised that there are a number of signs around the car park indicating the
restrictions of the site directly complying with the BP.
• The car park is operated by Automatic Number Plate Recognition (ANPR) – cameras capture
an image of vehicles entering and leaving the car park and calculate their length of stay.
• Please be advised that signage on site clearly states that there are no concessions for
disabled drivers.
• Your disabled badge handbook will also inform the driver and/or carers that when
parking on private land the restrictions displayed will apply. Your disabled badge will
only offer free or extended parking on local authority land.
• Prompt payment is now advisable.
Please make payment of the discounted amount of £60.00 by visiting our website at
www.eurocarparks.com or use the automated telephone service 0203 553 4559. Alternatively make
your cheque payable to Euro Car Parks Limited (to include a £2.50 handling charge for cheque
processing) and post to Euro Car Parks Ltd, 30 Dorset Square, London, NW1 6QJ, quoting the PCN
number on the reverse of the cheque.This amount is now due and the charge will be held for 14 days
to allow time to make the payment. If payment is not received by this time the charge will increase to
£100.00 and this may also result in the notice being passed to a third party with further charges
applicable.
You have now reached the end of our internal appeals procedure.
You can make an appeal to The Independent Appeals Service (POPLA) within 28 days online at
www.popla.co.uk with the following reference number xxxxxxxxxx. Alternatively, if you wish to appeal
to the Independent Appeals Service by post a copy of the appeal application can be sent at your
request. Please be advised that if you opt for independent arbitration of your case the ability to pay
the parking charge at the reduced rate will be at an end. If you opt to pay the parking charge notice
you will be unable to appeal to POPLA. If you choose to do nothing, we will seek to recover the
monies owed to us via debt recovery procedures and may proceed with Court action against you.

By law we are also required to inform you that Ombudsman Services (www.ombudsman-
services.org/) provides an alternative dispute resolution service that would be competent to deal with

your appeal. However, we have not chosen to participate in their alternative dispute resolution
service. As such should you wish to appeal then you must do so to POPLA, as explained above.
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Snout
post Thu, 24 May 2018 - 21:05
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Forgot to add... could do with some advice on what to do next, thanks!
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nosferatu1001
post Fri, 25 May 2018 - 07:04
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How come you need advice?
You have a POPLA code, rejection was expected, so your POPLA appeal should basically be done already

Go do yourresearch and show us your first draft. MSE forum -> NEWBIES thread has some example appeals
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Snout
post Fri, 25 May 2018 - 07:33
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Ok, thanks... Should i base it on the initial letter I wrote (above)?
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nosferatu1001
post Fri, 25 May 2018 - 08:06
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POPLA appeals are about 6 pages long, with pictures emeddd where you can get them. Causes some PPCs to just fold
You will see this when you go to the MSE forum, as directed...
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Snout
post Mon, 28 May 2018 - 21:29
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Hi... Im really struggling to find the right links. Ive just spent the last hour and half looking but cant seem to get the right ones. I tried searching the newbie forum but i must be doing something wrong. If someone can direct me I can try and donthe rest. Thanks!
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SchoolRunMum
post Mon, 28 May 2018 - 23:03
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https://forums.moneysavingexpert.com/showth...d.php?t=4816822

You need to read the third post, which has the POPLA examples.

Or, how about searching both forums for the keywords: Euro POPLA.


I noticed that the two contraventions listed under the words ''Failure to comply with the following will result in a £100 PCN...'' are nothing to do with any overstay - i.e. the sign doesn't create a contravention by overstaying.

I also notice they state ''No concessions for Disabled Badge Holders''. Guess what, that's illegal! Look:

http://www.wake-smith.co.uk/news/council-c...-badge-holders/



Do you know what I would do FIRST? Having read this:

QUOTE
One passenger, suffers from terminal cancer. On the day in question this elderly female, became short winded, tired and found it very difficult to continue walking. It was necessary to stop for some time which caused the overstay. This person is in possession of a blue badge for her condition which was clearly displayed in the vehicle. A 3rd party witness in addition to the passengers in the vehicle at the time are available to provide written witness statements if necessary. In addition to the Equality Act 2010 where it states “reasonable adjustments” for those needing it...


Obviously that's an urgent disability discrimination complaint to the landowner! Show them the Wake Smith link above and demand it is cancelled and that they review the suitability of a parking firm who mismatch ANPR arrival times with PDT machine payment times and also state that there will be no concessions for disabled BB holders, which is against the law.

Service Providers like parking firms and owners/agents running car parks, MUST make reasonable adjustments, it's not optional.
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Snout
post Tue, 29 May 2018 - 15:16
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Hi... please see below. I've tried to make it coherent but really need someone much better than me to cast their eye over it before I send it to Popla.
Thanks in advance!

POPLA Verification Code:
XXXXXXX
Vehicle Registration:
XXXXXXX
I, the registered keeper of this vehicle, received a letter dated 27 April 2018, acting as a notice to the registered keeper. My appeal to the Operator Euro Car Parks was submitted and acknowledged by the Operator on 04 May 2018 and rejected via an email dated 23 May 2018.

I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. Frustration of contract / Equality
2. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
5. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
6. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
7. No period of grace given for the driver to read the additional signs within the car park.
8. Euro Car Parks have provided no evidence that the ANPR system is reliable.

1. Frustration of contract / Equality
One passenger, suffers from terminal cancer. On the day in question this elderly female, became short winded, tired and found it very difficult to continue walking. It was necessary to stop for some time which delayed the return to vehicle. This person is in possession of a blue badge for her condition which was clearly displayed in the vehicle (signage clearly states this car park is patrolled). A 3rd party witness in addition to the passengers in the vehicle at the time are available to provide written witness statements if necessary. While ECP state “no concessions for disabled drivers” it is clear that in addition to the Equality Act 2010 where it states “reasonable adjustments” for those needing it, I would also urge you to consider Wake Smith Solicitors v Norwich City Council (http://www.wake-smith.co.uk/news/council-car-park-case-settled-a-victory-for-blue-badge-holders/) where Norwich City Council were forced to change their disabled policy in line with current legislation as detailed in the Equality Act 2010

In addition you need to consider that of the recommendation of time to arrive at a suitable parking bay, prepare to exit, get to the pay station, queue behind others, read signage, decide to accept / decline T&C’s, make payment (BPA CoP), plus the fact there was also a baby (and equipment (pram, etc.)) that also needed to be unloaded and loaded before leaving a very busy and narrow car park.
2. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

The first communication received from Euro Car Parks was a Notice to Keeper, dated 25 April 2018.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

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. This is re-iterated further; If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.

Paragraph 8 states:
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so given; for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose working day means any day other than a Saturday, Sunday or a public holiday in England and Wales.

According to the Notice to Keeper, the Date of Issue is Wednesday 25th April 2018, therefore the relevant period; would be Thursday 26th April 2018 until Wednesday 6th June 2018. As the date of the Notice to Keeper is 25 April 2018 it does not comply with 8 (5).

Meanwhile, under Paragraph 9 (5), it states:
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

This would take the relevant period to be Wednesday 18th April 2018 to Wednesday 9th May 2018 inclusive.

In neither incidence, whether we are to assume Euro Car Parks were issuing the Notice to Keeper under Paragraph 6 a or b, is the date of the Notice to Keeper compliant under POFA 2012, and therefore I ask that you accept my appeal as keeper.

Further, contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not specify the period of parking to which it related. It merely provided the Date of Issue, Time Observed and Issue Time. No definition is provided for these terms, such as whether they relate to when the vehicle allegedly entered and exited the car park or equate to the period of parking.


3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

As a parking charge cannot be enforced against a keeper without a valid Notice to Keeper.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

This is the only evidence supplied to me as keeper appellant by Euro Car Parks, an image purporting to be of a notice within the plot of land in question. The image is not date stamped or independently verified for its authenticity. Please note that there is no visible indication of the liability of any party, least of all the registered keeper of any vehicle:

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA, but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

5. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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 Notice to Keeper merely uses digitally altered cut sections of just the number plate while the appeal rejection from Euro Car Parks does not make reference to any car park and shows the vehicle in motion, not parked at all. Euro Car Parks also make reference in their appeal rejection that “A pay and display ticket matching your vehicle registration was purchased for £3.50 – this would have entitled your vehicle to park for up to 4 hours” a clear contradiction to their alleged photographic ‘evidence’ where the vehicle is in motion. In addition, and as stated on the appeal rejection, the ticket they make reference to was purchased at 11:14am, 8 minutes after what is stated on the NTK.

On the signage, the two contraventions listed under the words ''Failure to comply with the following will result in the issue of a £100 PCN (£60 if paid within 14 days of issue)'' are nothing to do with any overstay which makes the signage ambiguous. There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, there is one sign indicating tariff (at the pay station). They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car in a busy car park such as the one in question.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on signs at entry). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operator’s signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this carpark and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


6. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Euro Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.

It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps. By close examination of the photographs, the details (time and location) are added as a black overlay box on-top of the photos. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge ECP to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).

7. No period of grace given for the driver to read the additional signs within the car park.

The parking session on the Notice to Keeper is not established by the ‘Time Observed’ and ‘Issue Time’ provided.

The BPA Code of Practice (13.2) states that parking operators "should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park. In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
There is no evidence that Euro Car Parks have upheld the minimum grace periods as set out in the BPA Code of Practice, as the total time in the carpark exceeded their stipulated period by only 20 minutes, a sum of 10 minutes prior to determining whether to park, and 10 minutes after the parking period had ended.

8. Euro Car Parks have provided no evidence that the ANPR system is reliable.

Whilst effective (but not accurate) at monitoring the time between observations of registration plates, ANPR is flawed for monitoring the length of time a car was parked. The ANPR cameras are positioned deep within the car park looking outward toward the entrance / exit, recording when a car passed it. However, the time between the two photographs would be the time parked, PLUS the time looking for a space, time reading the signage and the time leaving the car park. In busy car parks, of which this is, this adds up to quite a period of time and this vehicle spent quite a while searching for a suitable bay and waiting to exit onto the road. The payment transaction was at 11:14am yet you base the PCN on an entry time of 11:06am which contradicts the BPA CoP. You are also inconsistent with the use of the word ‘parking’ which is misleading. An example of such is on the PCN and appeal rejection whereby ECP state “the P&D/permit purchased did not cover the date and time of parking”.
It is misleading to assume entry and exit. A person could understand this to be at point of payment and exit of the parking bay to which they rent for the duration. Which makes sense as driving around the car park and failing to find a suitable space would not breach the T&C’s. It is also questionable to assume at what point the exit is positioned and if other vehicles temporarily preventing exit are considered. In order to meet the transparency requirement, the signage should state not only the timing is from the point of entry and exit to the car park but identify where the car park / ‘parking’ boundary is. If that is not done, how could any motorist have reasonably known? It is also reasonable to form the view that the driver only knew about the fee / tariff displayed at the machine, not about any penalty or any made-up term that the time started before the time printed on the P&D ticket. None of that is stated at the machine or at point of entry
The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this carpark were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Euro Car Parks has not provided any evidence to show that their system is reliable, accurate or maintained.

No evidence of period parked. The parking charge notice clearly states the P&D/permit did not cover the date and time of parking. PoFA2012 Sched 4 Para 9 refers at numerous times to the period of parking. By virtue of the nature of an 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. There is no evidence the vehicle was ‘parked’ for the time stated. 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 the said 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 ECP 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.
The BPA Code of Practice clearly states in section 20.5a that photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. The photographs you have provided on the Parking Charge Notice, and the ones used for judgement in this case may have been digitally altered to show only the registration plate, they also have no time stamp. Nor do they make any reference to the carpark.
In addition to showing the maintenance records, it is requested for ECP to show evidence to rebut the following assertion. It is suggested 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 any time stamp (no stamp provided on your evidence) 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, it is put to ECP to strict proof to the contrary.
Therefore it is respectfully requested that this Notice to Keeper request appeal be upheld on every point.
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Snout
post Thu, 31 May 2018 - 11:59
Post #20


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Group: Members
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Joined: 7 Aug 2017
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In addition to the above, is it worth mentioning somewhere that the info@eurocarparks.com and dataprotection@eurocarparks.com emails were contacted to request further information as a person acting on behalf of the registered keeper (no detail other than a first name was used). The info address gave details of the case including time of payment, photos of car and a copy of the NTK. A couple of days later the data protection people emailed and sent a rather generic email saying they couldn't give any details:

"Thank you for your recent correspondence relating to a request that we are treating as a subject access request (SAR). Please note that we have not received confirmation that the registered keeper has authorised you to act on their behalf. If you wish to proceed you will need to be aware of the below process which will account for both yourself and the registered keeper in that we need to establish your identities before proceeding.

Is this a breach of privacy / confidentiality?

Thanks
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