Euro Car Parks POPLA draft

Weasel262

Hi guys.

I have read the first post, sent the original template appeal (rejected) and have now drafted up an appeal for POPLA. I would be very grateful if you guys could give it the once over and let me know if I might have missed any points please.

For some background, the PCN was received from Euro Car Parks by post after parking in a pub car park. Turns out only 90 minutes was free, and the stay was allegedly 2.5 hours (almost to the second, which I find suspect!).

Another point is that even though in the template appeal letter it states that it is expressly disallowed to send further correspondence by email, I received my rejection letter attached to an email and nothing by post (I have allowed a week to pass in case the letter was on its way). Is this a point that can be raised in POPLA? Does this mean their rejection is still valid?

As I've read on various posts, Euro have done a pretty good job of the POFA wording and so I don't think I can catch them out on this; as such my first point might be tenuous. I have said they didn't use 'exact' wording regarding recovering charges from the keeper after 28 days. They have written something different but still to that effect.

Points 2-4 are copy/paste, so I have just left the titles in.

POPLA draft below:

I wish to appeal the parking charge notice Euro Car Parks issued against the vehicle in question. I would like to have the parking charge notice cancelled based on the following grounds:

1. Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
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 entrance signs are inadequately positioned and lit and 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
5. Vehicle Images contained in PCN: BPA Code of Practice – noncompliance
6. The ANPR system is neither reliable nor accurate.



1) Keeper Liability not established - The Notice to Keeper is not compliant with the requirements of PoFA (2012).

The driver of the vehicle has not been identified. In order for the operator to transfer liability for the charge from the driver of the vehicle to the registered keeper, they must with the strict requirements set out in the Protection of Freedoms Act 2012 (PoFA).

Although Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) gives a creditor the right to recover any unpaid parking charges from a vehicle!!!8217;s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

I set out below a non-exhaustive list of reasons why Euro Car Parks Notice to Keeper failed to comply with Schedule 4 of POFA:

(i) Contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park; these times do not equate to any single evidenced period of parking. There is no evidence of a period of parking and this cannot reasonably be assumed on the balance of probabilities.
(ii) Contrary to the requirements of Paragraph 9(2)(f), this NTK fails in the prescribed requirement - in exact words and with the correct deadline - to:

''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;''


(iii) Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before iMail actually put the NTK in the post via Royal Mail.

Consequently, Euro Car Parks has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If Euro Car Parks should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

URLLINK|transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade|URLLINK

Understanding keeper liability
There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.


The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if:

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor) (b) has given a notice to keeper in accordance with paragraph 9.''

The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012.

This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report:

''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

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


3. No evidence of Landowner Authority


4. The entrance signs are inadequately positioned and lit and 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


5. BPA Code of Practice - further non-compliance (photo evidence).

I would also bring into question the authenticity of the photographs taken of the vehicle, most notably the time stamps and location coordinates. By close examination of the photographs, the details (time and location) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge ECP to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).

6. The ANPR system is neither reliable nor accurate.

The Euro Car Parks evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle 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 offer 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, 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 be synchronized to the pay and display machine clock nor even 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; 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 Euro Car Parks 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 Euro Car Parks produces evidence in response to these points.

Therefore it is respectfully requested that this Notice to Keeper request appeal be upheld on every point.



Thanks!

Weasel262

EDIT: to make this longer and more arduous to respond to by the PPC, I have added an extra two points, but I won't post them for checking because they are copy/paste jobs:

7. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach
8 The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

Weasel262

Just a gentle bump on this...

Umkomaas

You seem to have all the standard appeal points listed there. Are you going to work on Weasel262's advice as well?

Your appeal points 2, 3 and 4 have no text to support the headers.

Appeal point 5 cites non-compliance with the BPA CoP, but the text doesn't explain which part(s) of the CoP are breached. You need to reference relevant paragraphs.

Weasel262

Thank you for your comments. I have found the relevant BPA COP paragraph and added this into point five.

From reading through lots of other ECP appeals, I've just seen one that was successful because the NTK stated transfer of liability as being '29 days after the date given' instead of going with the standard exact wording of 28 days etc, so I am optimistic!

Points 2, 3, 4 were copy and pastes from other ECP templates so I didn't post them in full. However, the full version (with point 5 edited) is now pasted below. Obviously feel free t skim over those that are copy and pasted - there are no unique details in there other than changing a few details.

Many, many thanks!





I wish to appeal the parking charge notice Euro Car Parks issued against the vehicle in question. I would like to have the parking charge notice cancelled based on the following grounds:

1. Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
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 entrance signs are inadequately positioned and lit and 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
5. Vehicle Images contained in PCN: BPA Code of Practice – noncompliance
6. The ANPR system is neither reliable nor accurate.
7. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach
8 The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for



1) Keeper Liability not established - The Notice to Keeper is not compliant with the requirements of PoFA (2012).

The driver of the vehicle has not been identified. In order for the operator to transfer liability for the charge from the driver of the vehicle to the registered keeper, they must with the strict requirements set out in the Protection of Freedoms Act 2012 (PoFA).

Although Schedule 4 of the Protection of Freedoms Act 2012 (“PoFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

I set out below a non-exhaustive list of reasons why Euro Car Parks’ Notice to Keeper failed to comply with Schedule 4 of POFA:

(i) Contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park; these times do not equate to any single evidenced period of parking. There is no evidence of a period of parking and this cannot reasonably be assumed on the balance of probabilities.
(ii) Contrary to the requirements of Paragraph 9(2)(f), this NTK fails in the prescribed requirement - in exact words and with the correct deadline - to:

''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;''


(iii) Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before iMail actually put the NTK in the post via Royal Mail.

Consequently, Euro Car Parks has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If Euro Car Parks should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

link

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”


The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (b) has given a notice to keeper in accordance with paragraph 9.''

The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012.

This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report:

''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

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

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

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

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

3. No evidence of Landowner Authority

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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 entrance signs are inadequately positioned and lit, 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.

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 Clarkhouse 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, and the signage at the pay machines contains texts so small as to be unintelligible, furthermore I put Euro car Parks to strict proof otherwise, As well as a site map they must show photographs of the signs as the driver would seem them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car, 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.
Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

link

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Figure 1 below is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

link

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

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.

The £75 sum on the yellow sign shown in the Euro Car Park’s letter is completely unreadable. The £75 is in such a small font that it seems to be at least half the size of the font used for the tariffs. Any reasonable driver looking at that sign, either inside or outside of their car, would conclude that the highest possible charge is £2.00. No driver could be held to have read about the £75, on the balance of probabilities.

The sign is also incapable of creating any 'relevant obligation' or 'relevant contract' being the basic requirements leading to the possibility of 'keeper liability' under Schedule 4 of the POFA.

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.
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.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than .40 font size going by this guide:

link

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

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:

link

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this carpark and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.


This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

link

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Weasel262

5. Vehicle Images contained in PCN: BPA Code of Practice – noncompliance

BPA Code of Practice paragraph 20.5a states 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."

Not only do the photographs given by the claimant fail to show any unauthorised parking as they are simply photographs of the vehicle entering and exiting the car park, I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time and location) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge ECP to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).

6. The ANPR system is neither reliable nor accurate.

The Euro Car Parks evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle 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 offer 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, 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 be synchronized to the pay and display machine clock nor even 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; URLLINKbritishparking.co.uk/How-does-ANPR- work URLLINK

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 Euro Car Parks 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 Euro Car Parks produces evidence in response to these points.

7. Breach of the BPA Code of Practice and ICO Code of Practice rules for ANPR and Surveillance Cameras

This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:

i) Lack of an initial privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and

iv) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held.

This Claimant has therefore failed to meet its legal obligations under the DPA.

8. 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':

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.

Therefore it is respectfully requested that this Notice to Keeper request appeal be upheld on every point.

Weasel262

Hi all,

I have received the usual evidence pack from ECP. I have scoured through to find inconsistencies but annoyingly they have been quite thorough. However, I have put together the points below. If you could read and let me know what you think that would be great. Note I will attach this as a PDF.

"The appellant raised 8 grounds for which ECP must provide a response. They have outlined in their evidence pack that they only wish to respond to 6 of these. They have provided no evidence for points 7 and 8; 'Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPA - a serious BPA CoP breach' and 'Signs fail to transparently warn drivers of what the ANPR data will be used for'. As such, they cannot show that they are not in fact in serious breach of the BPA CoP practice. Additionally, by showing images of the signage of the car park, they have therefore shown how illegible any small writing on the sign is, which directly demonstrates point 8 of the appeal.

ECP have also written that they would like to respond to 'reference made to Pre-Estimate of Loss/Consumer breach of contract 199'. No such reference was made in the original appeal, and this calls into the question whether the evidence pack is merely a copy and pasted document where they have failed to consider and respond to each point adequately.

In relation to NTK compliance, ECP have provided a copy of their NTK received by me, the registered keeper. It clearly states 'You are advised that if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid...' this is in direct contravention to POFA 2012 which states that the NTK must state, in EXACT words and with the correct deadline, to: "warn the keeper that if, after the period of 28 days beginning with the day...". Thus, the wording as it relates to 29 days is misleading and non-compliant. Keeper liability does not pass.

On this point, the Operate can not show that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

The photo of signage in figure 2 shows that ECP directly breaches BPA CoP where it states in Section 18 that signs must be legible. Unlike with the Beavis case, where the £85 sum was in the largest font size, the charge implied by the sign from ECP is much smaller than most of the text on the sign. In addition I would direct you to the thick paragraph of minuscule red writing, that even if an individual was stood in front of the sign, with a magnifying glass, would still not be legible.

As for the signage on the wall of pub, there is no indication of the exact location; it is not by the front entrance (see the photo of the entrance supplied under point 7 – there is no clear yellow signage around the entrance as you walk in) and although they have provided an aerial image, they have not showed the signs are adequately positioned or lit, or indeed that they were not obstructed by trees, since the photos were taken in winter when the trees were bare. The images are from 2017 and therefore ECP have not shown that their signage currently complies with BPA CoP.

In addition, the ‘Pay at Meter’ sign shown under point 7 is in fact nowhere near the entrance to the pub OR car park, but is on the side of a hill, far from even the outdoor seating area, and can be easily missed.

The up close views of signage (with no indication of where this signage is) is misleading – signs state that 90 minutes are free, but this sign states that if you purchase a ticket on arrival you will have to pay for the duration (i.e. no 90 minutes free). And yet ECP’s evidence appears to show signs directing people to ‘Pay at meter’. This is misleading and is an attempt to prevent drivers obtaining 90 minutes free.

Figure 3 which shows the transactions from the same day has clearly been doctored: the rows of transactions alternate between grey and white in colour apart from when, at the alleged time that the vehicle entered the car park (13.38), two transactions have been cut together (two white rows instead of alternating), showing only two transactions from 13.04 to 14.11. This evidence is useless at best, and intentionally misleading at worst. ECP cannot clearly show that no ticket was purchased in this time when they have clearly altered the list of transactions.

Finally, ECP have not shown that their images are in line with BPA CoP section 20.5a stating that the photographs must refer to and confirm the incident which is claimed to be unauthorised. There is no proof that the driver even parked; what if the driver had merely turned around in the car park twice in one day, or been picking up and dropping off an individual at the pub? ECP have failed to provide evidence that a) the vehicle was parked in an authorised way and b) that the photographs supplied have not been doctored.

Weasel262

FYI, the evidence was received on 12th, so I believe I have until the 18th.

I would appreciate any advice on if people think this is too long and I might be better just shortening my points?

Thanks so much!

Umkomaas

You've got just 2,000 characters (not words) available to rebut their evidence. You are running at over 4,600 currently, so this needs serious surgery.

Use bulletpoints and weed out any 'leggy' rhetoric. Concentrate on the main points of contention you have with their evidence - pick the most important to deal with. You cannot introduce any new evidence - it will be ignored.

You must use the POPLA portal to submit the rebuttal, not a .pdf file.

Coupon-mad

You cannot attach a PDF on the Portal at Comments stage, You CANNOT get round the 2000 character limit and please do not try (e.g. no emailing a long spiel to try to find a way round it) or POPLA won't read it.

Just stick with the Portal and ONLY the killer points.

Remove all this, it has no legs, ECP do use POFA wording, etc:

"The appellant raised 8 grounds for which ECP must provide a response. They have outlined in their evidence pack that they only wish to respond to 6 of these. They have provided no evidence for points 7 and 8; 'Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPA - a serious BPA CoP breach' and 'Signs fail to transparently warn drivers of what the ANPR data will be used for'. As such, they cannot show that they are not in fact in serious breach of the BPA CoP practice. Additionally, by showing images of the signage of the car park, they have therefore shown how illegible any small writing on the sign is, which directly demonstrates point 8 of the appeal.

ECP have also written that they would like to respond to 'reference made to Pre-Estimate of Loss/Consumer breach of contract 199'. No such reference was made in the original appeal, and this calls into the question whether the evidence pack is merely a copy and pasted document where they have failed to consider and respond to each point adequately.

In relation to NTK compliance, ECP have provided a copy of their NTK received by me, the registered keeper. It clearly states 'You are advised that if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid...' this is in direct contravention to POFA 2012 which states that the NTK must state, in EXACT words and with the correct deadline, to: "warn the keeper that if, after the period of 28 days beginning with the day...". Thus, the wording as it relates to 29 days is misleading and non-compliant. Keeper liability does not pass.

On this point, the Operate can not show that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

And this is also not a winning point so don't bother:

Finally, ECP have not shown that their images are in line with BPA CoP section 20.5a stating that the photographs must refer to and confirm the incident which is claimed to be unauthorised. There is no proof that the driver even parked; what if the driver had merely turned around in the car park twice in one day, or been picking up and dropping off an individual at the pub? ECP have failed to provide evidence that a) the vehicle was parked in an authorised way and b) that the photographs supplied have not been doctored.

But this is dynamite:

Figure 3 which shows the transactions from the same day has clearly been doctored: the rows of transactions alternate between grey and white in colour apart from when, at the alleged time that the vehicle entered the car park (13.38), two transactions have been cut together (two white rows instead of alternating), showing only two transactions from 13.04 to 14.11. This evidence is useless at best, and intentionally misleading at worst. ECP cannot clearly show that no ticket was purchased in this time when they have clearly altered the list of transactions.

Wow. Just wow...

Send that evidence to the Information Commissioner with a formal online complaint (easy to do, they have complaint form and you can add attachments) alleging that this parking firm has actually cut out lines of payments and attempted to use that very clearly cut/altered data list, as evidence at POPLA to win an appeal. Surely this is against the law, and follows on so soon after another parking firm (Excel) was held just weeks ago by a Judge, to have altered a payments list for a court case (where they produced two different versions) blah blah...

I think you need to make MUCH more of that for POPLA - should be your first point. Unfortunately you can't use bold in the Portal but you could put the bolded words in capitals instead, so POPLA can't miss your point.

Weasel262

Thanks both, I can see now that the threads I was reading where people had attached rebuttals to PDFs were all from 2017, so I'm guessing that has changed.

Your points have been very useful and I've amended to the below. Do you think this is ready to go?

- Figure 3 shows the transactions from day of the incident. This has clearly been doctored: the rows of transactions ALTERNATE BETWEEN GREY AND WHITE in colour apart from when, at the alleged time that the vehicle entered the car park (13.38), TWO TRANSACTIONS HAVE BEEN CUT TOGETHER (TWO WHITE ROWS INSTEAD OF ALTERNATING), showing only two transactions from 13.04 to 14.11. This evidence is intentionally misleading. ECP cannot show that no ticket was purchased in this time when they have CLEARLY ALTERED THE LIST OF TRANSACTIONS. This is unacceptable and calls into question the legitimacy of all the evidence.

- Figure 2 shows inadequate signage. Unlike with the Beavis case, the charge on ECP’s is much smaller than most of the text. Even ‘Welcome to The Francis Newton’ is bigger than the charge, which is lost in a wall of text. The paragraph of minuscule red writing at the bottom is not legible at all, even if an individual stood in front of the sign with a magnifying glass.

- Signage on the wall: no indication of the exact location; it is NOT by the front entrance (see the photo of the entrance – there is no clear yellow signage around the entrance as you walk in) and although they provide an aerial image, they have not shown the signs are adequately lit, or that they were not obstructed by trees, since the photos were taken in winter when the trees were bare. The images are from 2017 and therefore ECP have not shown that their signage currently complies with BPA CoP.

- ‘Pay at Meter’ sign under point 7 is nowhere near pub entrance OR car park, but is on the side of a hill, far from even the outdoor seating area, and can be easily missed.

- Close-up views of signage are misleading – some state 90 minutes free, but one sign states that if you purchase a ticket on arrival you will have to pay for the duration (i.e. no 90 minutes free). But ECP’s evidence shows signs directing people to ‘Pay at meter’. This is an attempt to prevent drivers obtaining 90 minutes free

Many thanks!