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So the NtK is not PoFA compliant - end of.

I'd be amazed if the assessor agreed. As of yet, I'm also not sure we've seen the 9(2)(e)(ii) point tested in court either, so I'm not sure it's quite right to describe it as "end of". It might therefore be wise to challenge some other points in ECP's response.

Do they provide a map of the site anywhere? Their landowner contract refers to one, but if they've not included one in the evidence pack that's an issue.

Thanks inner.

I can confirm dwmb2 there is a map in the evidence pack. I been trying to deal with imgbb since yesterday but I’m still having issues. I uploaded 35 page pdf but the link only shows 18 pages.

Here is a link that’s only valid for 24 hours before deletion that’s shows the last 18 pages with maps and signage.

I noted this point early on but didn’t mention it as I thought it would be disregarded.

You take a left into shell and drive forward to the back passing fuel pumps on your right. At the back there is plenty of signage not accessible on google street view. That’s where the courier collection boxes are.

Hi all.

As expected I have appeal
Denied by popla. Copy pasted below.

Decision
Unsuccessful
Assessor Name
Gayle Stanton
Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) because the driver parked on the site for longer than the maximum stay.

Assessor summary of your case
The appellant has provided the following grounds of appeal which I have summarised for the purposes of assessment: • No keeper liability – the Notice to Keeper is not compliant with PoFA 2012 Schedule 4 (including failure of 9(2)(e)(i)). • Mandatory consideration period and grace period not evidenced and not capable of being correctly applied when the operator relies Euro Car Parks relies on ANPR to calculate “length of stay”. That approach cannot properly measure parking time. It also fails to show that mandatory time allowances were applied. • Inadequate signage – no proof of prominent terms capable of forming a contract. • No proof of landowner authority – Euro Car Parks must evidence every requirement in PPSCoP section 14.1(a) to (f). • Failure to consider mitigation and vulnerability – breach of PPSCoP Annex F. • ANPR reliability and data integrity not proven. In the comments the appellant has provided the following : The conditions of PoFA Schedule 4 Paragraph 9(2)(e)(i) are not met - the critically required wording is obviously not present in the NtK. The PCN shows the driver entering the forecourt (from the main road) by making a shallow turn to the left - more of a taper than a turn in fact - due to the layout, most drivers would enter in this manner. The signage on entry from this direction is wholly inadequate since there is no required 'entry signage' which faces oncoming traffic - this does not appear to meet the minimum requirements set out in The Code of Practice document. The appellant has provided a document detailing their grounds of appeal.

Assessor supporting rational for decision
When assessing an appeal POPLA considers if the operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the site. The appellant has advised that the Notice to Keeper is not PoFA compliant. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper in the event that the driver or hirer is not identified. In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the Protection of Freedoms Act (PoFA) 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. I will therefore be assessing keeper liability. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant in all aspects. The Private Parking Sector Single Code of Practice (The Code) sets the standards its parking operators are required to comply with. The appellant states that they were not allowed a consideration or grace period. Section 5.1 of the Single Code of Practice states that parking operators must allow a consideration period of appropriate duration, subject to the requirements set out in Annex B to allow a driver time to decide whether or not to park. In this case the recommended consideration period according to Table B.1 is five minutes. The Code also includes the following note: NOTE 2: The consideration period may end earlier than the times prescribed in Annex B where there is evidence that the driver has, accepted the terms and conditions applying (whether or not they have chosen to read them) which may for example be evidenced by the driver parking the vehicle and leaving the premises, paying the applicable parking tariff, or remaining on the controlled land for more than 5 minutes. As the vehicle remained on the site for one hour and one minute this was exceeded and the driver became liable to comply with the terms. Section 5.2 of the Single Code of Practice requires a parking operator to allow a grace period in addition to the parking period. However, the Code advises that grace periods are not applicable to short stay areas where the parking of a vehicle is allowed for a limited period not greater than 30 minutes, such as drop off and pick up zones. In this case as the maximum stay allowed is 15 minutes which is a short stay car park, drivers are not entitled to a grace period. The appellant has advised that there was no entrance signs and Section 3.1.1 of the Single Code of Practice states that there must be an entrance sign displayed and maintained at the entrance to the site, to inform drivers whether parking is permitted subject to terms and conditions or prohibited. Section 3.1.2 of the Code contains the principles the entrance sign must display, including whether public parking is available. Its design must also comply with the standard format as described in Annex A. The entrance sign must take into account the speed of vehicles approaching the car park. The operator has provided evidence of the entrance signs on the site and these advise that the maximum stay permitted is 15 minutes. These signs also advise that motorists can see the signage on the site for further terms and conditions. Due to this I am satisfied that the entrance signs comply with Section 3.1.2 of The Code. Section 3.1.3 of the Single Code of Practice contains the requirements for signs displaying the terms and conditions. The signs must be placed throughout the site, so that drivers have the opportunity to read them when parking or leaving their vehicle. The terms and conditions must be clear and unambiguous, using a font and contrast that is be conspicuous and legible. The operator has provided evidence of the signage on the site and this advises that parking is limited to 15 minutes and that failing to comply will result in a £100 PCN being issued. I am satisfied that the signage on the site complies with Section 3.1.3 of The Code. The appellant says they were unaware of the terms and conditions. However, a driver does not need to have read the terms to accept them—only to have been given the opportunity to do so. It is the driver’s responsibility to locate and understand the terms before parking. Based on the photographic evidence and site map, I am satisfied that the driver would have passed at least one sign and therefore had this opportunity. The appellant states that there is no evidence of landowner authority and Section 14.1 of the Code states that where controlled land is being managed on behalf of a landowner, written confirmation must be obtained before a parking charge can be issued. In this case the operator has provided a memorandum of understanding and I am satisfied that the operator has the authority to issue PCN’s on this site. The operator does not need to provide a full copy of the full contract as it may contain commercially sensitive information. The appellant states that the operator has not considered any mitigating circumstances. The Appeals Charter is a statement on how certain circumstances should be handled by the parking operator. This details when a parking charge should be cancelled, and when a parking charge should be reduced to £20, when an appeal is based on an error or mitigating circumstances. In this case the appellant has not provided any explanations as to why the operator or POPLA should consider their mitigating circumstances. The site operates Automatic Number Plate Recognition (ANPR) cameras, which capture vehicles entering and exiting the site to calculate the time a vehicle has remained in the car park. This data captured is then compared with the online transaction record, and therefore if any vehicle has overstayed the maximum stay of 15 minutes, a PCN is issued. The data provided by the operator shows that the vehicle had been parked on the site for one hour and one minute on the day in quesiton. ANPR technology is generally reliable, though POPLA sometimes receives appeals alleging ANPR errors. In such cases, POPLA considers whether any evidence casts doubt on the accuracy of the system. The operator must first prove the PCN was correctly issued, usually by providing ANPR images. If they do so, the burden then shifts to the motorist to provide evidence that questions the ANPR’s reliability. This may include an account of events, but physical evidence—such as receipts showing the motorist was elsewhere—is usually more persuasive. The POPLA assessor ultimately decides whether the evidence demonstrates an ANPR inaccuracy. In this case the appellant has not provided any evidence to cast doubt on the operator’s ANPR evidence and therefore I can only consider this evidence in this case. The operator has issued the Parking Charge Notice (PCN) because the driver parked on the site for longer than 15 minutes and therefore did not comply with the terms and conditions. Based on the evidence provided, I am satisfied the parking charge has been issued correctly therefore, I must refuse the appeal. This means the appellant is required to pay the full parking charge to the operator.

Fill in the missing details and submit to POPLA as a complaint to info@popla.co.uk




POPLA Complaint - Procedural failure by the Assessor to correctly identify non PoFA compliance in a Euro Car Parks NtK.

POPLA Code -

POPLA Assessor - Gayle Stanton.



Dear Lead Assessor,


Background;

I have recently received an appeal response from POPLA regarding a Parking Charge Notice issued by Euro Car Parks.

In my appeal I specifically demonstrated that the issued NtK was not compliant with all the required aspects of PoFA Schedule 4 Paragraph 9(2).

This complaint relates purely to the inability of the Assessor to correctly apply the legislation when required.

In her assessment Gayle Stanton incorrectly establishes keeper liability when keeper liability cannot possibly occur due to multiple compliance issues.


Clear procedural error;

In simple terms, the Euro Car Parks NtK is not compliant with PoFA Schedule 4 Paragraph 9(2)(e).

As you will see in my original appeal, I clearly lead the Assessor, very directly, to the exact failings of the operators NtK.

I think it is fair to say that the Assessor could be left in absolutely no doubt what those failing were.

In her appeal response, Gayle Stanton specifical mentions non compliance with Paragraph 9(2)(e) in the appeal summary at the start of her response.

It is therefore unclear how such a clear and obvious mistake can be made.

In her response, the Assessor explains the basics of PoFA and then states, " I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant in all aspects."

This statement is demonstrably false since an examination of the NtK clearly reveals the missing elements which would be required to make it 'compliant in all aspects'.

In the first instance, I would draw your attention to the fact that the Assessor flatly refuses to engage with the precise evidence provided by myself in respect of the requirements of 9(2)(e) - instead, she simply makes a blanket statement which never addresses the specific evidence.

In my appeal I specifically invited the Assessor to demonstrate where the requirements of 9(2)(e) were met within the operators NtK - if the Assessor believed the wording to have been present then she could have easily copied this wording, verbatim, from the operators NtK in order to prove compliance with the required section.

It is my opinion that the Assessor refuses to do this since it is obvious that the required wording is not present - the Assessor cannot present the evidence which is not there?

I note with interest that the Assessor does engage in the more subjective elements of my appeal but deliberately and, in my opinion, purposefully, avoids the very specific and objective element which deals with PoFA compliance - because PoFA compliance is totally objective, any engagement with the issue raised (in terms of the precise requirements) would only lead to more clarity on the issue and that, in turn, would lead to a situation where the Assessor would be unable to demonstrate that the NtK was compliant - as a result the Assessor is forced into non engagement with the points raised because they are not rebuttable since the NtK does not contain the required wording and subsequent legal choice which 9(2)(e) requires.


Correct procedure;

Schedule 4 Paragraph 9(2)(e) states the following;


The notice MUST

(e)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;


So, in order to establish compliance with 9(2)(e) we must examine the precise wording of the operators NtK - the word AND is deliberately emboldened by myself in order to draw your attention to the precise requirements - that the NtK must set out the prescribed wording AND then invite the keeper to choose between the two options which should be presented to the keeper at that precise point.

So, in the case of the mandatory requirements of 9(2)(e), 9(2)(e)(i) and 9(2)(e)(ii) we are looking for a section of prescribed mandatory wording immediately followed by the presentation of a two limbed legal choice which must be offered to the vehicle keeper (and not the driver).

This should therefore be something along the lines of the following;

==============================================

At the current time, Euro Car Parks (the creditor) does not know both the name and a current address for service for the driver.

The keeper is therefore invited 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 this notice onto the driver.

==============================================


The required paragraph is clearly missing from the operators NtK - if the required paragraph is present then please feel free to point it out to me?

The information must be presented in this manner to be compliant ie in one paragraph. Compliance cannot be achieved by, for example, placing the information at random points throughout the NtK since this would not present the keeper with the text immediately followed by the legal choice which 9(2)(e) / 9(2)(e)(i) / 9(2)(ii) requires - this point is clearly backed up by the precise wording of 9(2)(e) - the mandatory text which must be immediately followed by the invitation to the keeper to pay the charges or nominate another driver.

In this particular instance it is immediately clear that;

The Euro Car Parks NtK never states the essential mandatory wording required by para. 9(2)(e).

The Euro Car Parks NtK never 'invites the keeper to pay the unpaid parking charges'.

The Euro Car Parks NtK never uses the required mandatory word "or" to connect the two required limbs of the legal choice.

The Euro Car Parks NtK never presents the two limbed legal invitation which para. 9(2)(e)(i) and 9(2)(e)(ii) demands.


Summary;

This, to be fair, is a very clear and obvious oversight by the Assessor given that she was lead directly to the NtK PoFA failings and that those failings were so clearly illustrated - this appears to demonstrate that Assessors are not adequately trained to deal with PoFA compliance even when they are presented with the evidence in a very clear fashion.



I await, with interest, the outcome of your enquiries.


Best wishes,

xxxxxxxx xxxxxxxx

A formal complaint will not change the outcome but an admission that the complaint was mishandled and, that PoFA keeper liability was wrongly established by the Assessor when the NtK was non-compliant, is, tantamount, to the same thing.

More embarrassment for POPLA.

Reply with the following;


Dear Paul,

Thank you for your reply.

Having examined your response I can see that you have 'skipped over' the missing wording and two limbed legal choice required by Schedule 4 Paragraph 9(2)(e).

Is this wording and two limbed legal choice not required to make the notice compliant?

Paragraph 9(2)(e) specifies;

THE NOTICE MUST STATE that the creditor does not know both the name of the driver and a current address for service for the driver - Please point this wording out to me as I simply cannot find it on the operators NtK?

9(2)(e)(i) and 9(2)(e)(ii) also specifies that the notice MUST set out the prescribed wording 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;

Please point this two limbed legal invitation out to me?


In your response you state, "The Notice also states the keeper must EITHER provide the full name and address of the driver and pass the notice to them." - This makes no grammatical sense since the second limb of your logic is missing?? - It's seems like you were actually half way to  subconsciously demonstrating non-compliance there?

Of course, the notice must state that the keeper may EITHER pay the unpaid charges OR provide alternative driver details?

The invitation to 'pay the unpaid parking charges' is clearly missing and you appear to notice that fact and this is why your sentence changes course half way through? Oddly, and having noticed it, you don't comment on the missing part of the mandatory two limbed choice? - To be clear, this missing limb makes the notice non compliant?


Any how, please specifically set out term 9(2)(e) / 9(2)(e)(i) / 9(2)(e)(ii) and then demonstrate how the wording from the NtK satisfies each of those requirements.

As I said, at present your reply carefully skips over these requirements.

So, to start with, we are looking for the prescribed sentence which states, "the creditor does not know both the name of the driver and a current address for service for the driver"?

Remember, look at the requirements of 9(2)(e) - The notice MUST STATE that the creditor does not know both the name of the driver and a current address for service for the driver.

Does the notice STATE this wording or not? It doesn't. If it did then either you or Gayle Stanton would have already pointed the wording out by now?


I await your reply.


Best wishes,


xxxxxx xxxxxxxxx