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  • FIRST POST
    • mypark22
    • By mypark22 14th Mar 17, 10:47 AM
    • 10Posts
    • 2Thanks
    mypark22
    ECP POPLA Appeal - New cross
    • #1
    • 14th Mar 17, 10:47 AM
    ECP POPLA Appeal - New cross 14th Mar 17 at 10:47 AM
    Hi,

    I received a Euro Car Park PCN which i appealed using the standard template and was rejected, which is what i expected, so now have to go through the POPLA process. I have received the letter with a POPLA code a couple of days ago, is it best to appeal right away or allow it to linger for the full 28 days?

    In the original appeal to ECP, it was foolish on my part to nearly admit I was driving:
    You issued me with a parking ticket on 12/02/17 but I believe it was unfairly issued.
    I will not be paying your demand for payment for the following reason:
    • There was insufficient signage
    The car park in question has no clear signage to explain what the relevant parking restrictions are. When I turned right and entered the shopping area (No clear signs on entering), I went and parked right opposite the Dreams store, facing it. There was no clear signage explaining the parking was restricted. I then walked to the two adjacent stores of Bensons and TK Maxx and with a 3 year old, it took us longer than usual to complete our purchases.

    • The charge is disproportionate and not commercially justifiable
    The amount you have charged is not based upon any commercially justifiable loss to your company or the landowner.

    In my case, the £70 charge you are asking for far exceeds the cost to the landowner given I was a genuine customer visiting the shopping stores in the area. I therefore feel the charge you have asked for is excessive.



    If you choose to pursue me please be aware that I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter.

    Yours faithfully,


    I parked in the New cross retail park and went well over the time limit. It is a free car park that has a 2hr limit and i overstayed by about 75 minutes.

    I was going to appeal with:

    1. No Evidence of Landowner Authority - Copy and paste from Newbie thread
    2. Lack of clear signage - Copy and paste from Newbie thread
    3. BPA Code of Practice - further non-compliance - photo evidence. - Copied and paste from other successful POPLA appeals
    4. 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.
    5.No Keeper Liability (Would this still be applicable given my original admission?)
    6.No Driver Liability (Would this still be applicable given my original admission?)


    Thanks
Page 1
    • Fruitcake
    • By Fruitcake 14th Mar 17, 10:58 AM
    • 38,197 Posts
    • 76,386 Thanks
    Fruitcake
    • #2
    • 14th Mar 17, 10:58 AM
    • #2
    • 14th Mar 17, 10:58 AM
    You admitted you were driving so no, 5 does not apply.

    I am confused by this as you said at the beginning of your post that you had used the template appeal, or did you mean that you used the dreadful oft complained about "official" MSE appeal template instead of the one in the NEWBIES thread.

    It doesn't matter when you appeal to PoPLA (except for specific reasons for running down the clock such as byelaw cases) as long as you don't miss the appeal deadline.

    You would be better posting your whole draft appeal rather than saying Copy and Paste, as it doesn't necessarily mean it will be correct for your situation until we see all of it.
    Last edited by Fruitcake; 14-03-2017 at 11:02 AM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
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    • mypark22
    • By mypark22 14th Mar 17, 11:20 AM
    • 10 Posts
    • 2 Thanks
    mypark22
    • #3
    • 14th Mar 17, 11:20 AM
    • #3
    • 14th Mar 17, 11:20 AM
    Thanks fruitcake for the prompt response.
    Would you say even no.6 is not applicable?

    Here is the draft (I will strike out 5&6 based on your response to above).

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

    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.No evidence of Landowner Authority
    2.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
    3.BPA Code of Practice - further non-compliance - photo evidence.
    4.The ANPR system is neither reliable nor accurate.
    5.No Keeper Liability
    6.No Driver Liability

    1. 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

    2. 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

    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:

    imgur image

    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.!

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    image
    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, the signs are sporadically placed, indeed obscured and hidden in some areas. 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.!

    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 some of the signs). 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 operators 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.!

    The letters seem to be no larger than .40 font size going by this guide:

    link

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

    image

    ''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.''

    ...and the same chart is reproduced here:

    link

    ''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 car park 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:

    link

    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.

    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 unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

    The parking charge notice in question contains two photographs of the vehicle number plate. Neither of these images 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 of 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. 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':

    link

    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.


    5. No Keeper Liability

    As previously stated in the appeal about about the inaccuracy of the ANPR system, POFA paragraph 9(2)(a) has not been fully met. The pictures provided in the NTK only shown the registration of the vehicle entering and exiting and not an actual picture of any parking.

    As already raised, this could be from separate occasions of entering the car park in which case is a failure on the ANPR system, which is a well known problem, so this also fails paragraph 9(3) as only a single NTK was delivered to the Keepers address. 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 in Schedule 4.

    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:

    image

    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 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.''

    6. No Driver Liability

    The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.!

    In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    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.

    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.''

    I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.
    • Fruitcake
    • By Fruitcake 14th Mar 17, 11:47 AM
    • 38,197 Posts
    • 76,386 Thanks
    Fruitcake
    • #4
    • 14th Mar 17, 11:47 AM
    • #4
    • 14th Mar 17, 11:47 AM
    5 and 6 won't fly as you have given away the driver's details.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • mypark22
    • By mypark22 14th Mar 17, 12:32 PM
    • 10 Posts
    • 2 Thanks
    mypark22
    • #5
    • 14th Mar 17, 12:32 PM
    • #5
    • 14th Mar 17, 12:32 PM
    Thanks Fruitcake.
    Does the rest look fine? Anything else that needs to be added?
    Do I still leave 5 and 6 there for it to be not considered by them? Or leaving it there would amount to perjury?
    • DoaM
    • By DoaM 14th Mar 17, 2:22 PM
    • 1,845 Posts
    • 1,733 Thanks
    DoaM
    • #6
    • 14th Mar 17, 2:22 PM
    • #6
    • 14th Mar 17, 2:22 PM
    Perjury doesn't (really) apply for POPLA, but if you've already "outed" yourself as the driver in any written communication with ECP then it's pointless using any Keeper appeal points.

    As asked before, and you've yet to answer - which template appeal did you use with ECP? The one from the NEWBIES thread, or the awful awful MSE article appeal?
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • mypark22
    • By mypark22 14th Mar 17, 2:30 PM
    • 10 Posts
    • 2 Thanks
    mypark22
    • #7
    • 14th Mar 17, 2:30 PM
    • #7
    • 14th Mar 17, 2:30 PM
    The template I unfortunately used the aweful MSE one
    • Guys Dad
    • By Guys Dad 14th Mar 17, 4:06 PM
    • 9,813 Posts
    • 8,759 Thanks
    Guys Dad
    • #8
    • 14th Mar 17, 4:06 PM
    • #8
    • 14th Mar 17, 4:06 PM
    The actual layout of your appeal is pretty poor and uninviting.

    You need to use bold to make things stand out - such as section headings.

    White space is also needed.

    Break it up with italics when referring to external sources such as
    "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."

    and incorporate indentation as well, such as

    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.''
    Don't underestimate the power of presentation.
    Last edited by Guys Dad; 14-03-2017 at 9:01 PM.
    • mypark22
    • By mypark22 14th Mar 17, 4:11 PM
    • 10 Posts
    • 2 Thanks
    mypark22
    • #9
    • 14th Mar 17, 4:11 PM
    • #9
    • 14th Mar 17, 4:11 PM
    Thanks Guys Dad. Will certainly incorporate this feedback.
    • Fruitcake
    • By Fruitcake 14th Mar 17, 4:34 PM
    • 38,197 Posts
    • 76,386 Thanks
    Fruitcake
    The template I unfortunately used the aweful MSE one
    Originally posted by mypark22
    The regulars on here have complained about it many times but have always received a stiff ignoring. Why would anyone write an appeal on a money saving website that throws away one of the most valuably appeal points available and actually cost people money I do not know.
    Last edited by Fruitcake; 17-03-2017 at 2:08 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • mypark22
    • By mypark22 15th Mar 17, 4:08 PM
    • 10 Posts
    • 2 Thanks
    mypark22
    I know kicking myself for not checking earlier. Whats a realistic chance of 1-4 doing the trick?
    • Coupon-mad
    • By Coupon-mad 15th Mar 17, 10:14 PM
    • 44,284 Posts
    • 57,006 Thanks
    Coupon-mad
    In most cases 1 - 4 will win because many PPCs do not contest, or do not show a landowner contract, and lose on that basis.

    Change the top heading for your point #4 to match the heading lower down, which is:

    4. 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.
    At the top you have it as the much weaker:
    4.The ANPR system is neither reliable nor accurate.
    Last edited by Coupon-mad; 17-03-2017 at 1:55 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mypark22
    • By mypark22 17th Mar 17, 11:31 AM
    • 10 Posts
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    mypark22
    Thanks Coupon_mad. I have made the changes. Anything else you guys recommend I include before I submit this to POPLA?
    • Fruitcake
    • By Fruitcake 17th Mar 17, 11:46 AM
    • 38,197 Posts
    • 76,386 Thanks
    Fruitcake
    Thanks Coupon_mad. I have made the changes. Anything else you guys recommend I include before I submit this to POPLA?
    Originally posted by mypark22
    Post your whole draft appeal here for checking before you submit it.
    I married my cousin. I had to...
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    • mypark22
    • By mypark22 17th Mar 17, 1:24 PM
    • 10 Posts
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    mypark22
    <without the formatting, as for some reason the italics and bold arent being retained by the tool, have it in my word doc>

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

    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. No evidence of Landowner Authority

    2. 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

    3. BPA Code of Practice - further non-compliance - photo evidence.

    4. 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.


    1. 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

    2. 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

    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:

    link



    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.!

    Here is the ‘Beavis case’ sign as a comparison to the signs under dispute in this case:

    link

    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, the signs are sporadically placed, indeed obscured and hidden in some areas. 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.!

    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 some of the signs). 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 operators 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.!

    The letters seem to be no larger than .40 font size going by this guide:

    link

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

    link

    ''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.''

    ...and the same chart is reproduced here:

    link


    ''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 car park 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:

    link

    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.

    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 unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

    The parking charge notice in question contains two photographs of the vehicle number plate. Neither of these images 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 of 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. 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':

    Link

    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 have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.
    Last edited by mypark22; 17-03-2017 at 1:26 PM. Reason: note added
    • mypark22
    • By mypark22 17th Mar 17, 1:24 PM
    • 10 Posts
    • 2 Thanks
    mypark22
    Above is the updated draft, if you all could kindly eyeball it. thanks a bunch
    • Coupon-mad
    • By Coupon-mad 17th Mar 17, 2:01 PM
    • 44,284 Posts
    • 57,006 Thanks
    Coupon-mad
    Looks fine - you should just delete the one which doesn't apply here: 'genuine resident':

    such as any 'genuine customer' or 'genuine resident' exemptions
    And how long was the overstay? If merely under 20 mins over, include the appeal on Grace Periods used here & adapt to suit:

    http://forums.moneysavingexpert.com/showthread.php?p=72247892#post72247892

    That appeal point #8 would just need the '23 mins' changing and the name of the parking firm if mentioned.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mypark22
    • By mypark22 17th Mar 17, 2:06 PM
    • 10 Posts
    • 2 Thanks
    mypark22
    Looks fine - you should just delete the one which doesn't apply here: 'genuine resident':



    And how long was the overstay? If merely under 20 mins over, include the appeal on Grace Periods used here & adapt to suit:

    link

    That appeal point #8 would just need the '23 mins' changing and the name of the parking firm if mentioned.
    Originally posted by Coupon-mad
    The overstay was of an hour and a bit so guessing #8 is out ?
    Also, you are suggesting that keep point 1, but omit the reference to 'genuine resident', but leave the 'genuine customer' correct?
    Last edited by mypark22; 17-03-2017 at 2:22 PM. Reason: updated question
    • Coupon-mad
    • By Coupon-mad 17th Mar 17, 2:08 PM
    • 44,284 Posts
    • 57,006 Thanks
    Coupon-mad
    Hmmmm - yep!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Fruitcake
    • By Fruitcake 17th Mar 17, 2:11 PM
    • 38,197 Posts
    • 76,386 Thanks
    Fruitcake
    Embed images rather than provide links to ensure that the assessor actually looks at them. If the link is to lengthy quotes of text, leave the links but quote brief salient points from the text.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
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