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POPLA appeal against ECP - NTK and unlit signage
3shirts
Posts: 19 Forumite
Here is my appeal letter to POPLA:
Dear POPLA Adjudicator,
I am the registered keeper of vehicle XXXXX and am appealing a parking charge from Euro Car Parks on the following points:
1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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. The signs in this car park are not prominent, clear or legible at night from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.
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)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’
The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.
Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.
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.''
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. The signs in this car park are not prominent, clear or legible at night 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.
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.
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, there is just one sign which is neither lit specifically nor illuminated adequately by environmental lighting. It is unremarkable and the wording is mostly illegible without direct light or daylight, especially with the blue font on yellow 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 simply cannot be read without direct lighting. 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. I put the operator to strict proof as to the visibility of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
Without use of a torch or other light source aimed directly at the terms, which are also in small and unclear text, they are simply illegible.
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 an illuminated 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 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 and during full daylight. I submit that full terms simply cannot be read from a car at night before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
Dear POPLA Adjudicator,
I am the registered keeper of vehicle XXXXX and am appealing a parking charge from Euro Car Parks on the following points:
1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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. The signs in this car park are not prominent, clear or legible at night from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.
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)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’
The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.
Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.
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.''
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. The signs in this car park are not prominent, clear or legible at night 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.
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.
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, there is just one sign which is neither lit specifically nor illuminated adequately by environmental lighting. It is unremarkable and the wording is mostly illegible without direct light or daylight, especially with the blue font on yellow 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 simply cannot be read without direct lighting. 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. I put the operator to strict proof as to the visibility of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
Without use of a torch or other light source aimed directly at the terms, which are also in small and unclear text, they are simply illegible.
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 an illuminated 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 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 and during full daylight. I submit that full terms simply cannot be read from a car at night before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
0
Comments
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Looks like the usual stuff, good research so far.
We don't know about what happened or whether you have tried complaining to the retailer, or whether this is just a few minutes 'overstay' (grace periods would apply, and make an extra appeal point, if so) or whether it was dark and you can add an extra point, that the photo evidence does not place the car at any recognisable site, and as POPLA is an evidence-based service, the PCN must fail.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi,
So today ECP have uploaded their 'evidence' to POPLA.
My main points of defence are that they do not know the driver, I am just the keeper, and that the signs are not visible in the dark.
They said:
[ME] appeal to POPLA he stated the following:
- The Notice to Keeper (NTK) is not PoFA compliant
- No evidence of Landowner Authority
- The Signage is not clear
Euro Car Parks would like to respond to the points raised with the following:
- Section 18.3 of the British Parking Association's (BPA) code of practice explains that signs must be conspicuous and legible and written in intelligible language, so that they are easy to
see, read and understand. Signage on site is clear, when parking on private land it is the driver's responsibility to read the signage displayed and parked accordance with the terms and conditions as stated. Euro Car Parks have provided photographic evidence showing that the appellant remained at the site for 3 hours and 40 minutes (Figure 1)
- The signage clearly states the terms and conditions of parking, all drivers are required to
purchase a valid pay and display ticket for the duration of their stay. Euro Car Parks can confirm
that the signage on site clearly dispalys the tariff at [LOCATION] (Figure 2)
- Signage on site is clear, when parking on private land it is the drivers responsibility to
read the signage displayed and parked accordance with the terms and conditions as
stated
- The signage clearly states the terms and conditions of parking, all drivers are required to
purchase a valid pay and display ticket for the duration of their stay.
- Signage is visble when entering and inside of the car park and when entering private land it
would be [ME]'s responsibilty to read the terms and conditions and adhere to them.
- As mentioned before it is [ME]'s responsibility to read and adhere to the terms and conditions displayed.
- Figure 3 is a transaction made matching the vehicle registration [REG] where I can confirm that the pay and display ticket purchased did not cover the full duration of parking on site according to the clearly displayed tariff.
- There is one machine on site as well as the option to Pay By Phone.
- Euro Car Parks can confirm that the notice has been issued under contract law - the signage on site is clear and when parking on private land it is the responsibility of the driver to read aforementioned signage and park in accordance with the T&CS displayed.
- The terms and conditions of parking are clearly displayed on the signage (including the charge payable should a breach of terms and conditions occur). If the driver did not agree with these conditions they would have had the option to leave site and seek alternative parking.
- According to BPA Code of Practise 13.4 car park operators should allow the driver a reasonable period to leave the private car park after the parking contract has ended; before enforcement action is taken. If the location is one where parking is normally permitted; the grace period at the end of the parking period should be a minimum of 10 minutes. I can confirm that
Euro Car Parks have given [ME] the suitable grace period of 10 minutes
- The signage is clear in its intent and because of this the notice has been issued correctly and should remain payable.
C1 MB
- With regards to the reference to - Pre-Estimate of Loss/breach of consumer contracts 1999. Please be advised that the Supreme Court has made judgement (04/11/15) that clearly sets out the issue of parking charge notices on private land (law of contract applies) and in particular pre-estimate of loss. The parking charge notice is enforceable on the basis that it protected a legitimate interest when the driver failed to adhere to the terms and conditions and was not extravagant, exorbitant nor unconscionable. The parking charge is not an
unenforceable penalty and does not breach the Unfair Terms in Consumer Contracts Regulations 1999.
- Any form of parking ticket or notice is issued under the law of trespass and Contract Law. A driver who is invited (or chooses) to park on private land and use the car parking facilities and pays a fee/s does so under a contract (signage) with the car park operator. The parking contract sets out the terms that apply to the parking service, including the price.
- The contract (signage) clearly states the extra charges are that the driver will incur and have to pay if they decide to break the contract terms for example, by parking longer than the time paid for or exceeding the maximum time limit applicable.
- Euro Car Parks only operates locations which are situated on private land, are not council owned and that Euro Car Parks has written authority to operate and issue parking charge notices on all of our locations from the landowner
- It must also be noted that any person who makes contract his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between Euro Car Parks and the motorist will be enforceable by Euro Car Parks
as a party to that contract
- Figure 4 is where I can confirm our PCN is POFA compliant.
- Euro Car Parks do not operate CCTV
- Figure 5 is the authority given by Adara Group to manage the car park.
- The Protection of Freedoms Act (PoFA) does not alter the principle of driver liability.
What it does do, is to allow proceedings against the registered keeper for unpaid parking charges when the landowner or their agent, the parking operator does not know who the driver was at the time.
By parking on site the driver has accepted the terms and conditions as displayed on the signage and a contract is in place between the diver and ECP that has been breached by the driver failing to purchase a display a valid ticket to cover the entire duration of stay.
As no pay and display ticket was purchased for the full duration of stay on sire Euro Car Parks asserts that PCN was issued correctly and should remain payable.
They also included a bunch of photos of the signs (two of them, one by the entrance and one near the pay machine) but all photos are in full daylight which I think just serves to further support the case really.
How do I proceed. Should I go to the site and take a picture of the sign in the dark to show how illegible it is or is it too late now I've already appealed? It seems I only have a comments box to respond to their evidence. Should I just explain the above, that they still do not have evidence I was the driver and that the signs are only visible in daylight?
Not sure what I need to do really?
Thanks0 -
Looking over this again, they are using my name frequently as being responsible but I was not the driver, just the keeper. I assume that is a key point to make.
My question really is should I simply enter comments on the POPLA site now that say, essentially, they have failed to identify the driver as per point 2 and the pictures they provide do not adequately prove that the signs can be easily read at night?
Is there further template for this or shall I draft it here for feedback?0 -
No, it's not, unless ECP didn't serve the PCN within 15 days. If they did, that's not worth pushing.they are using my name frequently as being responsible but I was not the driver, just the keeper. I assume that is a key point to make.
This is worth you closely looking at (start date, signatories, end date, does it continue into perpetuity, who are Adara Group, unlikely to be the landowners, sounds like an agent not in possession):Figure 5 is the authority given by Adara Group to manage the car park.
This is key:They also included a bunch of photos of the signs (two of them, one by the entrance and one near the pay machine) but all photos are in full daylight which I think just serves to further support the case really.
Too late, you cannot add evidence but you can reiterate that it was dark, and that ECP's own PCN evidence shows a lone numberplate in darkness, and shows no ambient light at all (if true!).How do I proceed. Should I go to the site and take a picture of the sign in the dark to show how illegible it is or is it too late now I've already appealed?
We all know that - search the forum for 'POPLA comments'* as we've discussed this stage too many times to keep repeating the info about what to say (brief) in the 2000 character box.It seems I only have a comments box to respond to their evidence.
*when searching this forum always 'go advanced' and change the default to 'SHOW POSTS'.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
How does this sound as comments on the evidence:
The PCN wording replicates that found not to meet the requirements of POFA in 2 recent POPLA appeals (4163477483 & 4160317097). The driver has not been identified and I cannot be held liable for this charge.
An unredacted ANPR agreement must be provided so that the hidden terms can be considered. Without this, POPLA cannot be satisfied that all the terms are met and that the operator has landowner authority. The section of the agreement given as evidence does not state an end date or period covered so does not prove that landowner authority was in place at the time of the issued PCN.
Under 3.1.5 of the agreement, the operator is required to maintain sufficient signage to adequately advise drivers of the conditions of parking. The photographs provided as evidence are taken in full daylight under favourable conditions. They do not serve to prove that the signs are readable after dark, the time the vehicle in question arrived.
The provided site map and photographs of signage provide no evidence that this vehicle was parked close to a sign or that the driver would have seen the signage, especially given the darkness.
Does that sound like I've covered everything?
EDIT: I looked up the land registry and Adara Group do own the land but, as above, the excerpt of the agreement ECP included as evidence doesn't give any dates other than the date it was signed.0 -
You are past this now, op, but I mentally altered 2 in your 1st post:
'2. The operator has not shown that the individual who it is pursuing is in fact the driver who [STRIKE]was[/STRIKE] it alleges is liable for this speculative charge.'
#
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Thanks. Hopefully that will help others in future anyway.
Do you have any thoughts on my last post, the reply to evidence?
I think my main points are the lack of evidence of adequate signage in the dark and the lack of evidence that landowner authority was in place at the time.0 -
Don't call it an ANPR agreement, makes no sense, call it 'landowner agreement':An unredacted ANPR agreement must be provided so that the hidden terms can be considered. Without this, POPLA cannot be satisfied that all the terms are met and that the operator has landowner authority. The section of the agreement given as evidence does not state an end date or period covered so does not prove that landowner authority was in place at the time of the issued PCN.
Personally, I would put in the POPLA box, a few short lines:These are my comments for POPLA, about the evidence pack:
- the excerpt of the agreement ECP included as evidence doesn't give any dates other than the date it was signed. It cannot be assumed the authority lasts into perpetuity.
- The photographs provided as evidence are taken in full daylight under favourable conditions. They do not serve to prove that the signs are readable after dark, the time the vehicle in question arrived. This was covered in my appeal and not disproven.
As such, POPLA, as an evidence-based service, will not be able to find that the PCN was properly given, and I look forward to hearing that confirmed by the Assessor.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks, that all makes a lot of sense.0
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I have submitted my comments, largely as suggested by Coupon-mad above (many thanks).
I will update when I hear the response.0
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