Unfortunately, the OP/RK has suffered a family bereavement and I have 'volunteered' to help her with this. Many thanks to all who contribute.
With grateful thanks to SRM (C-M),I have amended this AS I THINK IS NECESSARY. Obviously there will be may bits that I have missed. If we are able to refine this into a finished document, I can E mail it to Cabbiegirl for her onward submission.
POPLA APPEAL
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 Euro Car Parks issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
2) No Landowner Authority
3) BPA Code of Practice - non-compliance
4) Lack of legible signage – no contract with driver
5) The unclear, altered signs and lack of proof of any legitimate interest/any right to sue customers/any authorised limit of
20 minutes distinguishes this matter from the ParkingEye v Beavis case.
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1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
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 a non-exhaustive list of reasons why Euro Car Parks’ Notice to Keeper failed to comply with Schedule 4 of POFA:
(i) 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 dates and times when the vehicle allegedly entered and exited the car park; these times do not equate to any single evidenced period of parking. There is no evidence of a single period of parking and this cannot reasonably be assumed on the balance of probabilities, from two photos of a car in moving traffic, timed hours apart. Indeed there is ample evidence in the public domain that ANPR timings can mask other ordinary circumstances, such as two visits ('double dip', a well known phenomenon).
Here are just three examples of BPA member ANPR evidence failures, including a court loss and an ICO investigation:
http://parking-prankster.blogspot.co.uk/20...-immediate.htmlhttp://parking-prankster.blogspot.co.uk/20...se-drivers.htmlhttp://parking-prankster.blogspot.co.uk/20...protection.htmlThis 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in the following article:
http://www.britishparking.co.uk/Other-Advice#4As with all new technology, there are issues associated with its use:
''Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''
I put the operator to strict proof that there was only one period of parking, because this is a mandatory requirement for keeper liability also stated clearly here in Schedule 4, to reiterate the importance of parking evidence:
(ii) ''9 (3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)...''
(iii) 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.
(iv) 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 to include all of the above wording, as prescribed under the statute.
(v) Contrary to the requirements of Paragraph 9(2)(f), this 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;''
(vi) Contrary to the requirements of Paragraph 9(2)(h), the Notice to Keeper does not identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(vii) 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 iMail actually put the NTK in the post via Royal Mail.
Consequently, Euro Car Parks has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.
If Euro Car Parks 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)— (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. 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) No landowner Authority:
I question Euro Car Parks Limited’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 Euro Car Parks Limited 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 Euro Car Parks Limited’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 Euro Car Parks Limited 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 Euro Car Parks Limited are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous 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 authorization 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 Euro Car Parks Limited to strict proof of compliance with all of the above requirements.
[ DELETE:This is vital, especially in view of the signs where it is clear on close scrutiny, is that someone (identity not established and I ask the operator for evidence in this regard) has changed the time limit to 4.5 hours at some point.] So, I contend that the contract - if this operator produces one - does not reflect the [DELETE: altered] 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).
It is eminently possible that the contract states only the original free parking period (whatever that was) and therefore a sticker over a sign is unsupported by the will of the landowner in any contract. This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just
20 minutes in a car park where they have only allowed this agent to issue PCNs after a completely different period.
I require Euro Car Parks Limited 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.
3) BPA Code of Practice - further non-compliance - photo evidence.
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 unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. 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 contains a date and time stamp on the photographs nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as any particular location at all).
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 require Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.
4) Lack of signage – no contract with driver - no adequate notice of the charge nor maximum stay (4.5 hours altered by a sticker)
I am the registered keeper and 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 been
[bdriving][/b] that day [DELETE: (or even more than one driver on separate visits, not disproven by Euro Car Parks)] 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.''
For the purposes of this appeal, I have now visited this same car park that this operator alleges was the site of a 'contract' being formed. 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 parking charge itself is not in 'large lettering.' [DELETE: and I note that the time on some signs (I do not know if this is consistent on all the signs) has been altered by a flimsy sticker at some point, by someone, to read: '4.5 hours maximum'. However I have no information as to when these stickers were applied and by whom and what the time limit in fact was, at the time of the alleged parking event.] It could have been ten hours for all I know, and unlike the driver(s) on the day, when I visited recently for evidence and information to help with this appeal, I was specifically seeking out the signs and terms and still could not read the parking charge or time limit clearly, when expressly looking for it.
The burden falls to the party trying to claim money, to produce irrefutable evidence that all their signs showed less time 'allowed' than the timing shown in their own photographs. It is obvious that the previous signage said something entirely different and that time cannot be assumed, it must be proved by this operator when the signs changed.
I have stated this in my appeal to Euro Car Parks and in their reply to reject my appeal they included a picture of a sign. In fact when I subsequently visited, looking around the site on foot, I did not see any signage like that in the entrance of the car park and again, I believe this has been changed at some unidentified point. I put Euro Car Parks to strict proof otherwise.
As well as a 'site map' showing the location of all signs - and the plotted/circled location of where they contend the car was actually parked in one single period for six hours - they must show photos of the signs as the driver would seem them from a driver's seat, upon entering 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. I question the fact that the driver saw any sign like that and so there was no consideration or acceptance and no contract agreed between the parties.
The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.[DELETE: And if/when the timing was changed to 4.5 hours then a BPA AOS operator is obliged to ensure that any change in restrictions or terms is drawn to the clear attention of drivers, who would otherwise rely upon knowledge of any previous time limit.]
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.
5) The unclear, altered signs and lack of proof of any legitimate interest/any right to sue customers/any authorised limit of
20 minutes distinguishes this matter from the ParkingEye v Beavis case.
BOTH parties are obliged to show how any case law they wish to rely upon, applies to and assists their own case. I can demonstrate that the ParkingEye v Beavis case assists my appeal.
The reference in the Beavis case, to the need for clear, unambiguous terms and the parking charge and restrictions being copiously displayed and in 'large lettering' assists my position. Each case must turn on its own facts and much depends upon how an operator presents its own case because every car park and every charge and documents and dates and facts and interests, are different.
I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:
''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''
Yours sincerely
R Reeve
POPLA Administrative Team
The point here is, the new POPLA Service cannot and must not make any wrong assumptions about liability and certainly are not empowered as an ADR, to impose the Beavis case arbitrarily upon all cases as if it is a 'silver bullet'. No case law about a single parking charge in a particular car park with different facts and its own signage, can possibly be a silver bullet striking out appeals regarding all other car parks/charges.
There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' automatically supersedes all other points of appeal about other parking charges in other car parks. It certainly does not 'supersede' all other points and each case must still turn on its own facts (and I am not even arguing about any 'GPEOL'!). Much more was said in the Parking Eye v Beavis judgment than findings about 'GPEOL' as opposed to 'commercial justification' and it did not shoot down any other parking charges, by default.
The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine where I state that, due to the facts of THIS charge in THIS car park with these signs and this flawed rationale for the sum and lack of legitimate interest and authority, the Beavis case does not assist them at all.
I have made my detailed submission to show how the applicable law (POFA), case law (Beavis) and the BPA Code of Practice undoubtedly supports my appeal, which I submit should now be determined in my favour.
Yours sincerely,