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  • FIRST POST
    • gardeningdad
    • By gardeningdad 4th Sep 17, 12:35 AM
    • 3Posts
    • 2Thanks
    gardeningdad
    Popla appeal draft Euro Car Parks
    • #1
    • 4th Sep 17, 12:35 AM
    Popla appeal draft Euro Car Parks 4th Sep 17 at 12:35 AM
    Would it please be possible to check over my Popla appeal? Could I also check which section of the Popla site I should attach the PDF to? Do I tick any of their boxes on Step 1, or just go to Other which it states is less likely to be successful? Have not submitted anything yet.

    To give a quick summary of what happened: the driver of the car did buy a correct pay and display permit for long enough time and displayed it in the correct way. The driver even got the parking fee refunded by Sainsburys for spending more than £10. Unfortunately the pay and display permit was discarded after leaving the car park so cannot be used as “proof” although the Sainsburys receipt is available. ANPR car park. PCN received in post, nothing left on windscreen. This has possibly been caused by the ticket machine not working very well - previous customer having difficulty with machine, she gave up, ticket took a long time to print out for some reason and was printed along with previous customers one. Driver fairly certain VRN was entered correctly (as certain as can be this long after the event.) No mis-spelled approximations of VRN on list ECP provided as evidence in rejection letter. Driver not named in postal appeal to ECP which they rejected. Letter of complaint to Sainsburys rejected.

    Many thanks!


    Regarding demand for payment from Euro Car Parks
    ECP reference number: xxxxxxxxx
    POPLA verification code: xxxxxxxxx

    I wish to appeal against this demand for money for the following reasons:

    1. 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
    2. 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
    3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    4. Faulty ticket machine
    5. Valid ticket was purchased and displayed
    6. Incomplete and invalid material provided as evidence by Euro Car Parks



    1. 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

    (Photo of car park sign will go here.)

    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:
    xxxxx

    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:
    xxxxx

    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:
    xxxxx

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

    LINK:
    xxxxx

    ''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:
    xxxxx

    ''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:
    xxxxx

    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.


    2. 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.''


    (Continued in next post...)
Page 1
    • gardeningdad
    • By gardeningdad 4th Sep 17, 12:39 AM
    • 3 Posts
    • 2 Thanks
    gardeningdad
    • #2
    • 4th Sep 17, 12:39 AM
    • #2
    • 4th Sep 17, 12:39 AM
    ...continued

    3. 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


    4. Faulty ticket machine

    Shortly after entering the car park and parking the car, the driver of xxxx xxx went to the ticket machine. There was a lady ahead of the driver who was having difficulty with the machine, having apparently entered her VRN and put money in, but without the resultant pay and display permit being printed for some unknown reason.

    The lady continued to persevere for a few minutes, with the machine reading "printing ticket" for much longer than should be expected, but with no ticket being printed, so she gave up and pressed the cancel button. The screen on the ticket machine was observed by the driver of xxxx xxx to go back to normal and said something like "enter VRN".

    Then the driver entered the VRN correctly, put in the correct money and then the machine again said "printing ticket" but with no printout, again for a longer period than should be expected with a properly functioning machine.

    Eventually two pay and display permits were printed in rapid succession: one for the lady who had been having problems, along with one for xxxx xxx.

    Although a ticket that had the correct VRN for xxxx xxx was eventually paid for, printed out and displayed correctly, the process was lengthy and confusing with the machine taking a long time to use and had to be used after another customer had had many problems with it.

    5. Valid ticket was purchased and displayed

    The permit for xxxx xxx was visually checked by the driver and displayed on the vehicle dashboard. The driver went shopping. The Sainsbury’s store below this rooftop car park refunds the cost of the pay and display permit if more than £10 is spent in store. The driver spent more than the minimum amount, produced the permit in Sainsburys and got the refund from the store. A copy of the receipt from Sainsburys is available. After receiving the letter from ECP incorrectly claiming that parking was not paid for, a long time after the event, the keeper went into Sainsburys to see if a record of the voucher could be provided but was told that the vouchers are not kept for long enough to help with parking disputes.

    The pay and display permit was not kept after the parking event so will not be provided. The driver does not routinely keep pay and display permits for several weeks after parking just in case the driver is accused of not parking correctly and suspects that very few people do!

    ( receipt scan goes here )

    Receipt from Sainsburys that was used to get refund of parking

    6. Incomplete and invalid material provided as evidence by Euro Car Parks

    On the rejection letter from Euro Car Parks they claim that a valid pay and display permit was not purchased which is not correct. They have provided a partially obscured list of vehicle entry times and VRNs.

    (Scan of section of rejection letter from ECP with partly obscured VRNs, including a blank line. Won’t post this here for privacy reasons.)

    There are two problems with the list.

    The first is that the list starts at 10:16 which is the time they claim that xxxx xxx entered the car park. There could be a time difference between the time on the camera and the time on the machine. They have not shown any times before 10:16 so if one clock was running fast the entry could be listed as before 10:16 on the database.

    The second issue is that, even if one assumed that the clocks were synchronised, there is a line blanked out on the VRN section at 10:23 which would be around the time that the permit was purchased. The “evidence” is incomplete.

    Under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order.
    I require Euro Car Parks to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images.

    As the parking charge is founded entirely on two photos of my vehicle entering and leaving the car park at specific times, it is vital that Euro Car Parks produces evidence in response to these points.


    Best Regards,
    Xxxx xxxx
    • Umkomaas
    • By Umkomaas 4th Sep 17, 7:55 AM
    • 14,898 Posts
    • 23,368 Thanks
    Umkomaas
    • #3
    • 4th Sep 17, 7:55 AM
    • #3
    • 4th Sep 17, 7:55 AM
    Looks fine to me.

    Where possible try to embed images into your .pdf document rather than send the assessor all around the internet chasing a series of copy and paste links. Try to get them, as far as possible, to see you are being helpful to them to deal with your appeal efficiently (it must be like Groundhog Day for them every day) as well as making your appeal look less like a huge copy and paste of an internet template.

    Tick the 'Other' box. Telling you it is less likely to be successful was no doubt influenced by POPLA's paymasters - the BPA - in an attempt to get motorists to tick one of the other boxes where they might more likely incriminate themselves.

    After submission you might even find ECP doesn't contest your appeal, which might tee them up for a DPA breach claim against them (subject to circumstances) if you are so minded.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • gardeningdad
    • By gardeningdad 4th Sep 17, 11:06 AM
    • 3 Posts
    • 2 Thanks
    gardeningdad
    • #4
    • 4th Sep 17, 11:06 AM
    • #4
    • 4th Sep 17, 11:06 AM
    Thanks for your help Umkomaas. I have a version of the draft saved with: the personal info filled in where it says xxxxx, the hyperlinks in place where it says "LINK", and an image of the car park sign, shopping receipt and VRNs all embedded as images in the body of the PDF. Hope that's ok. I'll try and make the formatting nice and clear too so they can skip to different sections.
    • alfaRRR
    • By alfaRRR 7th Oct 17, 7:04 PM
    • 14 Posts
    • 0 Thanks
    alfaRRR
    • #5
    • 7th Oct 17, 7:04 PM
    • #5
    • 7th Oct 17, 7:04 PM
    Hey,
    How did you get on?
    • Umkomaas
    • By Umkomaas 7th Oct 17, 9:15 PM
    • 14,898 Posts
    • 23,368 Thanks
    Umkomaas
    • #6
    • 7th Oct 17, 9:15 PM
    • #6
    • 7th Oct 17, 9:15 PM
    Hey,
    How did you get on?
    Originally posted by alfaRRR
    Seems odd to me, that over a month on, we don’t have an update.

    @gardeningdad - what’s occurring?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
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