Euro Car Parks - Appeal Rejected - Any help appreciated, please.

poadb

Hi all

I need some advice or guidance please.

I received a PCN from ECP last month for failing to pay and display. I promptly took to the MSE forum for guidance and found all the information to appeal.

My grounds for appeal are thus:

The carpark in question is relatively new, around 18 months old now. It facilitates parking for several establishments; bars, restaurants and a cinema. The cinema being the establishment I was visiting.

When I first visited the cinema, I paid and displayed. I was watching Batman VS Superman, so paid for a 4 hour ticket. I asked the staff when collecting my tickets and over-priced refreshments if my the parking tickets were redeemable for visitors.

I was told that unfortunately the parking tickets were not redeemable, that the cinema were working with the land owner to put in place an exemption scheme but also "not to worry", because parking was free after 6pm. Great! I hadn't had to pay afterall, but nevermind - I now know for next time.

I've visited the cinema 3 times since, all this year and each of them after 6pm, to make use of the free parking. However, on my 3rd visit (my last visit), I've received this PCN.

Now, each time I've visited, I've been quite careful and double checked with staff at the cinema that parking was still free after 6pm. Each time they told me it was.

So I naturally appealed. My arguments being that the signage wasn't clear, that the cinema staff had confirmed parking was free after 6pm and lastly ECP had not lost revenue. They had not lost revenue because surely the time I paid and didn't have to covers the time I should have, and also the car park was half empty. It was a Sunday evening and plenty of spaces both as I entered the carpark and left it. So I wasn't occupying a space for someone that knew better than the cinema staff and I?

Do I have a case to appeal to POPLA?

I appreciate your time reading and helping.

Redx

you do have a case for popla, but not based on anything other than legal arguments , like signage etc, so read post #3 of the NEWBIES sticky thread and draft a popla appeal based on

no landowner contract
poor and inadequate signage
BPA CoP failures
POFA2012 failures
NTK failures
not the same as the BEAVIS case

etc

poadb

Thanks Redx, I'll get to reading and drafting and post something back soon for review

poadb

Here's what I have so far. I will need some more guidance on the POFA2012 and NTK failures, if you don't mind?

From the template I used, I've referenced the Crown Wharf carpark signage, with an imgur.com link, to show how confusing it is to visitors. The carp park sign says it's free after 6pm, which is what I was told by staff, and there is NO signage to say the car park I used is under different rules.

I've also had to amend the photographic evidence provided of my vehicle, under BPA CoP. The photographs provided in the rejection letter are time and date stamped, but this could have been digitally added. The photos do not prove I was at the location stated though. So left that in.

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p { margin-bottom: 0.25cm; line-height: 120%; } 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:

imgur.com/a/AkMCN

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:

2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg


The signage I saw when entering the Crown Wharf carpark in Walsall:


imgur.com/zywzFLn.png


As far as I am aware, as there is insufficient signage to indicate otherwise, the carpark at the Crown Wharf, Walsall spans both sides of the retail carpark.


The photograph ECP have supplied is taken from a short distance away and does not reprent a drivers visibility of any signage when entering.

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:

archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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:

ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

bailii.org/ew/cases/EWCA/Civ/2000/106.html

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. Whilst these images do contain a date and time stamp on the photographs, they do not 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 appears on the photographs in white font with a black background. As such, this could have easily been placed by digital software, therefore I require Euro Car Parks Limited to produce 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':

.legislation.gov.uk/uksi/2008/1277/contents/made

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.

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Coupon-mad

Crown Wharf is not longer infested by ParkingEye? Good.

http://i.imgur.com/zywzFLn.png

That sign does not mention £100 charge.

So, in point #2 I would add this (under the bit shown in blue that's already in the template):

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.

POPLA Assessor, please note, the fact that a person merely mentions the Beavis case to illustrate that the signs inadequate by comparison with that case, does NOT mean they are saying anything whatsoever about 'loss'. THAT IS NOT MY POINT, WHICH IS ABOUT INADEQUATE SIGNAGE.

The entrance sign fails to state anything about £100 but it does list hourly tariffs, so it is not merely a brief sign directing you to read the full terms - it purports to BE the full terms:

http://i.imgur.com/zywzFLn.png

It also states clearly that parking after 6pm is free. In the case the car was parked after 6pm. The sign does not state that the time is taken from the point of driving in, nor does it suggest that different terms apply to cinema visitors as opposed to patrons of other shops. ANPR is mentioned but the operator completely fails to explain what that means for visitors who would assume that cameras are there for security. This sign cannot be said to have provided 'adequate notice' of £100 parking charge, or indeed any charge after 6pm.

poadb

Thanks - their sign looks like this:

imgur.com/a/6L2SK

Coupon-mad

So it that part of Crown Wharf? Which is what you were saying and is shown on the other sign?

I would NOT show that sign, only the entrance sign for Crown Wharf, if that's part of the same site.

poadb

No, you can park on both car parks, but it's not clear that the car parks are managed differently, imo. Until today, I didn't differentiate between the Crown Wharf and this new car park. To me it has always just been "The Wharf".

But this is where the assumption from the cinema staff must have come from. Since they told me it was free to park after 6pm. They didn't say it was the car park on the other side of the road.

To help explain, both car park entrances share the same roundabout; left and right on wolverhampton street:

google.co.uk/maps/place/Crown+Wharf+Shopping+Park/@52.5866218,-1.9921534,16.25z/data=!4m5!3m4!1s0x4870a209d170419b:0x2f1af9673e64cca3!8m2!3d52.5874!4d-1.9873559

Coupon-mad

OK, you need to make that all clear to POPLA and rely heavily on the entrance sign with 'free after 6pm' on it and nothing about £100 charge. Show them all of that in your 'no contract with driver/unclear signage' point.

poadb

How should I re-word or improve this section?

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The signage I saw when entering the Crown Wharf carpark in Walsall:


imgur.com/zywzFLn.png


As far as I am aware, as there is insufficient signage to indicate otherwise, the carpark at the Crown Wharf, Walsall spans both sides of the retail carpark.


The photograph ECP have supplied is taken from a short distance away and does not reprent a drivers visibility of any signage when entering.

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.

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My argument being that it's unclear to visitors or motorists that the two car parks are managed separately. And this surely seemed the case for staff also, who advised me on each visit that parking remained free at the vicinity after 6pm.

Whilst the ECP signage is undoubtedly larger in size to the "other carpark", the print is difficult to make out from a drivers perspective. I think all other points remain.

Coupon-mad

Say this, add it to that first sentence after the image:

it's unclear to visitors or motorists that the two car parks are managed separately. And this surely seemed the case for staff also, who advised me on each visit that parking remained free at the vicinity after 6pm.

Also add that the entrance sign states unquivocally: 'free after 6pm' on it and has nothing about £100 charge. I already gave you some wording n post #5, you must make sure the Assessor sees what you see (and BTW the image of the sign must be embedded into your word document to illustrate it, not a link).

Don't show a pic to any other signs.

Do show a site map from above, if it helps, again embedded in the document.

It is for them to rebut what you say.

Upload it as a PDF under 'other' on the POPLA website.