blue badge/EA 2010 POPLA appeal advice

breezeblock

Yes I have had extensive email communication with them but they say it is noting to do with them and that I should contact ECP. Basically they dont want to know!!!

Coupon-mad

breezeblock wrote: »

I am struggling with the "beavis differences" as all the ones I am reading are re: permit parking or seem to go against my case???

Some thing like this has been used before, I just took this from an older POPLA appeal:

If a contract was formed between the driver and Operator it would be a simple financial consumer contract to pay the advertised £4.50 tariff for up to 3 hours. The £75 sum being demanded is seventeen times that sum.

A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. THE BEAVIS CASE DOES NOT CHANGE THIS AND THE CONSUMER RIGHTS ACT REINFORCES IT.

To seek £75 instead of £4.50 is nothing other than a penalty clause designed to profit from inadvertent oversights and is consequently unenforceable. The Beavis case is not applicable so POPLA please do not respond that that case 'supersedes' this argument. It does not and the Beavis decision has no application in a P&D car park whatsoever, as was proved by the findings of the Judges.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal; these findings were not held to be incorrect by the Supreme Court so they stand as part of the Beavis judgment.

In that situation the charge was supported by a legitimate interest, deemed justified on the basis that it was necessary to deter motorists staying longer than allowed, in order to facilitate the turnover of bays. It was determined that the contract was not a financial one in that there was no 'economic transaction' between ParkingEye and the motorist.

This is in stark contrast to the present case where there is an alleged economic transaction to be pursued for £4.50, between the Operator and the motorist. This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and NO tariff then followed, only an immediate £85 charge.

Here, Euro Car Parks can potentially merely pursue the tariff, not seventeen times more, and have made no reasonable adjustment of free time for disabled parkers in any case so even the £4.50 is unconscionable under the circumstances.

Half_way

breezeblock wrote: »

Yes I have had extensive email communication with them but they say it is noting to do with them and that I should contact ECP. Basically they dont want to know!!!

The Sign clearly statess on behalf of JD wetherspoon, what sort of extensive communications have you had?
you need to spell it out in no uncertain terms

Dear JD wetherspoon, further to my previous correspondence regarding a parking charge euro car parks reference number ####notice issued to myself as the registered keeper/the registered keeper of vehicle ( registration number)
There appears to have been some confusion as to your responsibilities in this matter, as you have taken on Euro car parks to act as your agents, as principal you (JD Wetherspoons) are jointly and severally liable for their actions, and I am now formally requesting that you cancel this parking charge with immediate effect.
I feel that I have wasted enough of my valuable time attempting to deal with this matter, and unless I hear otherwise you leave me with little other choice than to proceed with this matter to the British Parking Associations limited's Parking on Private Land Appeals system (POPLA) this will incur a charge of £19 per hour ( or part thereof) plus I may also press ahead with legal action against yourselves over a breach of the Equality Act

breezeblock

So, after 3 and a half hours, this is what I've come up with. I wold be VERY grateful for your opinions and any suggested alterations,

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued by Euro Car Parks Ltd. I would like to have the parking charge notice cancelled based on the following grounds:

1) BPA Code of Practice - non-compliance to guidelines
2) No evidence of period parked
3) No landowner authority
4) Lack of signage- unclear signage
5) The ANPR system is neither reliable nor accurate
6) Equalities act 2010

1) BPA Code of Practice - non-compliance to guidelines:

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. They do not clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite ECP to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.

2) No evidence of period parked. The NtK clearly states the vehicle was parked during the relevant period. PoFA2012 Sched 4 Para 9 refers at numerous times to the period of parking. By virtue of the nature of a ANPR system recording only entry and exit times, ECP are not able to definitively state the period of parking. Contrary to the mandatory provisions of the BPA code of practice, there is no record to show that the vehicle was parked longer than the time allowed PLUS the mandatory grace periods. These are a minimum of 10 minutes to leave the car park and a similar period to cover the period after the vehicle parks, finds signage, reads the signage and decides whether to accept or reject the terms offered within. An alleged 30 minutes overstay does not meet the binding code of practice. There is no evidence that the vehicle was ‘parked’ for 120 minutes.!

3) No landowner Authority:

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

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ECP to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question ECP’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that ECP is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that ECP are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“The written 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.''

I put ECP to strict proof of compliance with all of the above requirements.!

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).!

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers.

If a contract was formed between the driver and Operator it would be a simple financial consumer contract to pay the advertised £3.00 tariff after the 90 minutes free parking. The £75 sum being demanded is!twenty-five times!that sum.

A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. THE BEAVIS CASE DOES NOT CHANGE THIS AND THE CONSUMER RIGHTS ACT REINFORCES IT.!

To seek £75 instead of £3.00 is nothing other than a penalty clause designed to profit from inadvertent oversights and is consequently unenforceable. The Beavis case is not applicable so POPLA please do not respond that that case 'supersedes' this argument. It does not, and the Beavis decision has no application in a P&D car park whatsoever, as was proved by the findings of the Judges.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal; these findings were not held to be incorrect by the Supreme Court so they stand as part of the Beavis judgment.!

In that situation the charge was supported by a legitimate interest, deemed justified on the basis that it was necessary to deter motorists staying longer than allowed, in order to facilitate the turnover of bays. It was determined that the contract was not a financial one in that there was no 'economic transaction' between ParkingEye and the motorist.!

This is in stark contrast to the present case where there is an alleged economic transaction to be pursued for £3.00, between the Operator and the motorist. This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and NO tariff then followed, only an immediate £85 charge.!

Here, Euro Car Parks can potentially merely pursue the tariff, not twenty-five times more, and have made no reasonable adjustment of free time for disabled parkers in any case so even the £3.00 is unconscionable under the circumstances.

I require ECP to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

4) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.!

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible.!

The BPA Code of Practice states that- “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

There were no conspicuous signs throughout the site. I put ECP to strict proof on this point. As well as a site map they must show photographs of the signs as the driver would see them on entering the car park and parking in the disabled bays at the rear of the building, and entering via the ramped disabled entrance, bearing in mind that they may be completely unfamiliar with the area, the approach to the car park, the entrance to the car park, or the layout of the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore, as stated, a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore the driver has not been identified and I have no obligation to assist an operator in this regard, even if I was certain which of several drivers could have used the car that day. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

(3) ''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.''

In fact, their signs are not visible from a car seat before parking and the words are completely unreadable and incapable of forming a contract before the act of parking (it is trite law that afterwards - after parking in this case - is too late).!

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.!

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.

5) The ANPR system is neither reliable nor accurate.

The ECP evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. In any case it is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic. If they in fact offered a pay and display system which the driver can only access after parking, and which is when the actual action and period of parking commences. i.e. when the vehicle is stationary, and when the clock should start from. The exit photo image of the rear number plate cannot be evidence of actual 'parking time' at all, and has not been shown to relate to the same parking event.!

Additionally you cannot discount that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website; https://www.britishparking.co.uk/How-does-ANPR- work!

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require ECP to provide records with the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of the vehicle number plate allegedly entering and leaving the car park at specific times (not shown within the photographic images), it is vital that ECP produces evidence in response to these points.

In addition to showing their maintenance records, I require ECP to show evidence to rebut the following assertion. I suggest that in the case of this vehicle being in that car park, a local camera took the image but a remote server added the time stamps. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time.

Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photo images, I put ECP to strict proof to the contrary.

6) The Equalities Act 2010

The duty to make reasonable adjustments under!s.20-21 EqA is arguably the most important head of disability discrimination. I believe that by making no adjustment in this car park for Disabled customers Euro Car Parks and Wetherspoons are actively discriminating against their disabled customers.

20Duty to make adjustments
(1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2)The duty comprises the following three requirements.
(3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.
(6)Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.
(7)A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.
(8)A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.
(9)In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to—
(a)removing the physical feature in question,
(b)altering it, or
(c)providing a reasonable means of avoiding it.
(10)A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—
(a)a feature arising from the design or construction of a building,
(b)a feature of an approach to, exit from or access to a building,
(c)a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or
(d)any other physical element or quality.
(11)A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.
(12)A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.
(13)The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column.
21Failure to comply with duty
(1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.
(2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person.
(3)A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.
22Regulations
(1)Regulations may prescribe—
(a)matters to be taken into account in deciding whether it is reasonable for A to take a step for the purposes of a prescribed provision of an applicable Schedule;
(b)descriptions of persons to whom the first, second or third requirement does not apply.
(2)Regulations may make provision as to—
(a)circumstances in which it is, or in which it is not, reasonable for a person of a prescribed description to have to take steps of a prescribed description;
(b)what is, or what is not, a provision, criterion or practice;
(c)things which are, or which are not, to be treated as physical features;
(d)things which are, or which are not, to be treated as alterations of physical features;
(e)things which are, or which are not, to be treated as auxiliary aids.
(3)Provision made by virtue of this section may amend an applicable Schedule.

breezeblock

The appeal rejection with POPLA code was received on 28th October. I can't find the original letter, will it e 28 days from receipt of the letter, or when ECP posted it to dad, please?

Guys_Dad

But this is a paid car park with a free period. The argument would be that seeing the time was approaching 90 minutes, the driver or BB holder could and should have ensured that they left sufficient time to go back to the car park and pay for additional time.

The key point there is whether or not the PPC would have allowed this to happen as it would appear that paying £3.00 would give a ticket showing a further 2hours parking from time of purchase. This is your direction of argument.

breezeblock

Sorry I'm confused now. I thought the point was that there were no easily readable signs to tell them they needed to pay after the free period?

Coupon-mad

breezeblock wrote: »

The appeal rejection with POPLA code was received on 28th October. I can't find the original letter, will it e 28 days from receipt of the letter, or when ECP posted it to dad, please?

What are the middle 3 digits before the number six in the POPLA code? Should be either 2xx or 3xx - so what are those numbers?

Don't give us the whole POPLA code.

The Equalities Act 2010

There is NO such Act.

It's the Equality Act 2010.

Coupon-mad

Guys_Dad wrote: »

But this is a paid car park with a free period. The argument would be that seeing the time was approaching 90 minutes, the driver or BB holder could and should have ensured that they left sufficient time to go back to the car park and pay for additional time.

The key point there is whether or not the PPC would have allowed this to happen as it would appear that paying £3.00 would give a ticket showing a further 2hours parking from time of purchase. This is your direction of argument.

Shows how ambiguous the signs are!

You interpreted it that they only needed to pay £3.

I interpreted it that they should have paid £4.50.

Clear as mud!

Fruitcake

I suggest you explain why the PPC and Wetherspoons have failed to meet the requirements of the EA 2010 instead of just list the requirements. What did they do wrong? What didn't they do that the Act says they should have done.

Spell it out for the assessor. I would also make it point 1, and send a copy to Wetherspoons showing them how they as principle are also liable.