Euro Car Parks, Uxbridge, PCN.

MC321

Advice taken on board, I don't expect you to read all of this as it would numb you, as it did me.

(It will be in two parts)

If there are any final amendments let me know.

Thankyou again!!
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PART 1


Appeal re POPLA Code: ****** v Euro Car Parks Ltd

Vehicle Registration: ******

POPLA ref: ******

As the Registered Keeper I wish to appeal the above PCN on the following grounds:

1) The vehicle in question never parked on the premises of Euro Car Parks Ltd.

2) No Evidence of Period Parked – NtK does not meet PoFA2012 Requirements

3) Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

4) There are no clear entrance signs for the regular entry and signs in the car park are not prominent, clear or legible from all parking spaces.

5) The ANPR System is neither reliable nor accurate

6) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

7) No Evidence of Landowner Authority

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1) The vehicle in question was never parked on the premises of Euro Car Parks Ltd.

For a Parking charge notice to be issued there needs to be a “Parking Event” in which a vehicle was, in fact parked for more than just the 3 minutes the car was temporarily stopped – and drivers swapped over – as it stalled. The Vehicle was driven to the car park so a driver could become familiar with the controls in a safe environment, and the car can be proven to be driving round all the time, with brief stalling not counting as a single period of parking, under the POFA:

(3) The notice must relate only to a single period of paring specified under sub-paragraph (2((a).

Due to the proof below it is clear that there was no single period of parking- total stay is irrelevant when a appellant can prove the car didn’t park – and nor did the operator serve a NTK that related to only to a single period of parking. It related to a period of driving and there is no capacity within the POFA for ‘Keeper liability’ for driving on private land (POPLA is called Parking On Private Land Appeals for that exact reason).

I argue that the vehicle in question did not park at any point which Euro Car Parks Ltd state it did. See figure 1 and 1a (enlarged mapping) below which show the journey start time, distance travelled and duration.

Figure 1.1 – Shows date and time of event, distance 2.11 miles and duration 22 minutes

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Figure 1.1A – Show vehicle driving over its own tracks within the car park and date/time.

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Looking at these telematics records for the vehicle in question it shows that the vehicles journey commenced at 21:35 on the 14/08/2018. The vehicle then drove to Euro Car Parks on Harefield road, arriving at 21:39 according to the NtK, !where it continued to drive around the car park, (as you can see in Figure 1.1A) until 21:57. The vehicle then stalled whilst doing a manoeuvre where the vehicle stopped and the vehicle shut down. Three minutes later the vehicle was started up again there was a change of driver and the vehicle drove towards the exit of the car park. (See figure 1.2 below)

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Figure 1.2 – shows vehicle in used between the times of 22:01 and 22:02.

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The vehicle then stalled and stopped for a further 3 minutes where it then proceed to leave the car park premises at 22:05 (see figure 1.3 below). At no point was the vehicle parked; only stopped to change drivers.

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Figure 1.3 – shows vehicle leaving car park premises at 21:05.

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I have provided an in-depth evidence from the “PeugeotTelematicsPortal” showing the routing and travel of the vehicle accurate to the minute, during the times in which Euro Car Parks state the vehicle was parked.

Additionally in the Euro Car Parks Ltd appeal refusal letter they stated that I had stayed more than 60 minutes (see figure 1.4 below), which Figures 1.1 – 1.3 prove incorrect.

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Figure 1.4 – Appeal refusal letter, see highlight area stating “parked longer than 60 minutes”

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2) No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements.

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Contrary to the mandatory provisions of the BPA Code of Practice, there is no record from Euro Car Parks Ltd to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” Euro Car Parks Ltd’s NtK simply claims that the vehicle “entered Harefield retail park - Uxbridge at 21:39:36 and departed at 22:05:38”.

At no stage does Euro Car Parks Ltd explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012. Euro Car Parks Ltd uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the vast unbounded and unmarked area to calculate their length of stay. Any vehicle passing by will be captured by ANPR. Euro Carp Parks Ltd, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Euro Car Parks Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. By virtue of the nature of an ANPR system recording only entry and exit times, Euro Car Parks Ltd are not able to definitively state the period of parking. I require Euro Car Parks Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

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3) !Vehicle Images contained in PCN: BPA Code of Practice – non-compliance.

The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The NtK in question contains two close-up license plate images. The time and date stamp and license plate have been inserted into the underneath (but not part of) the images. In addition, the first image does not even show a vehicle, only an inserted image of the license plate and time stamp. Given the vast area that has neither been bounded nor marked as parking restricted, any vehicle passing by can be captured by Euro Car Parks Ltd’s APRN.

As a result, these images cannot be used as the confirmation of the incident and Euro Car Parks Ltd claim was unauthorized. I require Euro Car Parks Ltd to produce clear evidence of the original images containing the required date and time stamp and images showing the car is actually parked in the location stated rather than just passing by. Given the unbounded nature of the venue, failing to produce such evidence would indicate the Euro Car Parks Ltd has been using APRN to engage random license plate collection of all vehicles passing by and send NtK with the aim to extract penalty. Such action is no different from sticking parking tickets to all vehicles passing by.

Recent investigation (27 Apr 2018) by BBC shows that the private parking industry is unregulated and does not have any accountability. Various cases show the industry’s priority is maximizing the penalty received from the motorist without due regard to the integrity of the evidence. Private parking operators are financially incentivized not to use the original image as evidence, but putting partial evidence together to generate a case biased towards generating a penalty fee. Based on the fact above, I require Euro Car Parks Ltd to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

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4) There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location.

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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. 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.

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.

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Figure! 4.1! below! shows! the! 'Beavis! case'! sign! as! a! comparison! to! the! signs! under! dispute! in! this! case.

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This! case,! by! comparison,! does! not! demonstrate! an! example! of! the! 'large! lettering'! and! 'prominent! signage'! that! impressed! the! Supreme! Court! Judges! and! swayed! them! into! deciding! that! in! the! specific! car! park! in! the! Beavis! case! alone,! a! contract! and 'agreement on the charge' existed. Here,! the! signs! are! sporadically! and! sparsely! 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. Euro! Car! Parks’! car! park! sign! on! the! Harefield road! site! is! inadequate! and! illegible! in! a! number! of! ways,! not! least! because! of! the! sheer! amount! of! text! that! must! be! read! (see! Figure! 4.2 and 4.3 below)

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Figure 4.2 – shows Euro Car Park T+Cs sign attached to appeal refusal email.

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Figure 4.3 (Below) shows Euro Car Park T+Cs sign gathered by me at a similar time to the alleged event in question.

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The! image! in! Figure! 4.3! shows! a! close! up! of! the! main! car! park! sign! in! the! same! lighting! conditions! as! the! date/time! for! which! the! PCN! has! been! issued. (N.B.! This! image! was! taken! whilst! standing! at! ground! level! looking! up! from! in! front! of! the sign. The! camera! was! held! at! head! height,! so! as! to !capture a fair image.! It! should! be! emphasised! that,! when! viewed! from! ground! level,! the! text! is! even! more! difficult! to! read! than the zoomed photo provide by Euro Car Parks in figure 2.

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Figure! 4.4 (Below)! shows! a! wider! angle! view! of! the! same! main! car! park! sign,! giving! some! context! to! the! size/location! of !the! sign! shown! in! Figure! 4.3. Figure 4.4 shows clear evidence that:

The! sign! is! positioned! high! on! a! pole,! making! it! difficult! to! read.

The! sign! is lit! from! above and behind !and as a result spotlight! serves! merely! to! create a shadow over the sign, casting it into darkness,! again! making! it! difficult! to! read.

Figure 4.4 – longer angle of sign from head level.

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Figure! 4.3! and! Figure 4. 4! clearly! show! that! Euro! Car! Parks’! signage! does! not! comply! with! the! BPA! Code! of! Practice! (18.3),! specifically: “Signs! must! be! conspicuous! and! legible,! and! written! in! intelligible! language,! so! that! they! are! easy! to! see,! read! and! understand.”

The! section! in! red! text! at! the! bottom! of! the! sign! (see! Figure! 4.2)! that! is! apparently! an! “Important! Notice”! is! in! tiny! text! that! is impossible! to! read without! a! step! ladder,! particularly! in! the! dark when you! would! also! need! a! torch.!!! It! cannot! be! ignored! –the! wording! used! clearly! states it is important and! therefore! urges! the! reader! to! fully !read! and! understand.!!! Why is something so important so small and illegible?! Furthermore,! red! text! on! a! yellow! background! is! difficult! to! read,! especially! in! low! light! conditions! or! with! artificial! light! introducing! a! glare! onto! the! reflective! surface! of! the! sign.!!! Indeed,! in! relation! to! design! principles,! it! is! widely! known! that! colour! contrast! plays! a! key! role! in! terms! of! accessibility! as! it! “affects! some! people’s! ability! to! perceive! information! (in! other! words! to! be! able! to! receive! the! information! visually).”(Government! Digital! Service,! 17! June! 2016). Whilst! this! web! page! discusses! design! principles! in! relation! to! web! design,! the! same! points! are! true! of! print-based! materials! which! would! include! signage.!!! Areas! of! this! site! are! unsigned and! there! are! no! full! terms! displayed! clearly! indicating! non-compliance! with! the! BPA! Code! of! Practice! (18.3)which! states: “Specific! parking-terms! signage! tells! drivers! what! your! terms! and! conditions! are,! including! your! parking! charges.!!! 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.”

Recently! (September! 2017)! a! not! dissimilar! POPLA! appeal versus! Euro! Car! Parks! (car! park:! Kay! Street,! Bolton)! was! successful! as! the! Assessor! was! not! satisfied! that! adequate! signage! was! placed! throughout! the! site! and! therefore! compliant! with! section! 18.3! of! the! BPA! Code! of! Practice.

It! cannot! be! reasonably! assumed(particularly! given! this! case! took! place! after! dark! in! a! car! park! that! a! driver! drove! past! and! could! read! a! legible! sign,! observed! one! upon! entrance! to! the! car! park,! nor! stopped near one.

Figure! 4.5: Approach! to! the! car! park! indicating! lighting! conditions! and! lack! of! signage.

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Figure! 4.5 shows! the! entrance! to the! car! park! in! an! image! taken! in! the! same! lighting! conditions! as! per! the! occasion! for! which! the! PCN! has! been! issued.!!! The car park is located behind a wall with a slight ramp leading to it.! This image clearly! shows! no clear, lit visible! signage! at the entrance! to! the! car! park! itself,! how! dark/poorly! lit! the! car! park! entrance! is and! finally how! poorly! lit! the! rest of the car park is, away from the store entrances.

Figure! 4.5! was! taken! in! the! same! lighting! conditions! as! per! the! occasion! for! which! the! PCN! has! been! issued.!!! The image! clearly! shows the! lack! of! lighting! and! also that! the! entrance! signs! are! nigh-on! invisible to! the! naked! eye! when! stood! still,! let! alone! when! driving! a! vehicle! approaching! from! a! 30mph! road. The! BPA! Code! of! Practice! (Appendix! ! sets! the! requirements! for! entrance! signs.!!! Following! further! research(on! foot,! during! daylight),! it! is! not! disputed! that! Euro! Car! Parks! entrance! sign! meets! these! requirements! in! terms! of! wording/layout–in! fact! it! is! almost! a! direct! copy! of! the! example! the! BPA! provide.!!! What! is! disputed! are! other! requirements! the! BPA! sets! in! Appendix! B,! specifically:

The! sign! should! be! placed! so! that! it! is! readable! by! drivers without! their! needing! to! look! away! from! the! road! ahead.2.

Signs! should! be! readable! and! understandable! at! all! times, including! during! the! hours! of! darkness! or! at! dusk if! and! when parking! enforcement! activity! takes! place! at! those! times.! This can! be! achieved! in! a! variety! of! ways! such! as! by! direct! lighting! or by! using! the lighting! for! the! parking! area.! If the! sign! itself! is! not directly! or! indirectly! lit,! we! suggest! that! it! should! be! made! of! a retro-reflective! material! similar! to! that! used! on! public! roads! and described! in! the! Traffic! Signs! Manual.

In! disputing! points 1! and! 2! above,! the relevant entrance! sign! in this! appeal! case is! not! readable! by! drivers! without! their! need! to! look! away! from! the! road! ahead(it’s! not! even! visible),! nor! is! it! readable! and! understandable! at! all! times. It! is! not! directly! lit! nor! does! it! benefit! from! lighting! used! for! the! parking! area.!!! It! may! well! be! made! of! a! retro-reflective material! but! this! is! irrelevant! in! this! case! as! the! positioning! of! the! entrance! sign! is! as! such! that! vehicle! headlights! will! never shine! on! it sufficiently! so! as to! illuminate! it.

It! is! therefore! suggested! once! again! that! Figures! 4.3,! 4.4! and! 4.5 serve! to! reinforce! the! earlier! point! made !regarding! non-compliance! with! the! BPA! Code! of! Practice! (18.3),! specifically: “Signs! must! be! conspicuous! and! legible,! and! written! in! intelligible! language,! so! that! they! are! easy! to! see,! read! and! understand.”

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,! the! signs! in! the! Harefield retail park car! park! do! not! clearly! mention! the! parking! charge! which! is! hidden! in! small! print .! Large! areas! of! this! site! are also! unsigned.

This! case! is! more! similar! to! the! signage! in POPLA! decision! 5960956830! on! 02/06/16,! 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! Euro! Car! Parks Ltd 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 on to an outdoor wall''

''...a guide line 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.

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),! in! the! same! lighting conditions.! 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. In! addition,! the! BPA! Code! of! Practice! (18.1)! clearly! states! that: “A! driver! who! uses! your! private! car! park! with! your! permission! does! so! under! a! licence! or! contract! with! you....In! all! cases,! the! driver’s! use! of! your! land! will! be! governed! by! your terms! and! conditions,! which! the! driver! should! be! made! aware! of! from! the! start.”

Bearing! this! paragraph! in! mind,! there! was! categorically! no! contract! established! between! the! driver! and! Euro! Car! Parks. To! draw! on! the! basic! guidelines! of! contract! law! for! a! contract! to! be! effective! the! offer! must! be! communicated.! Therefore,! there! can! be! no! acceptance! of! an! agreement! if! the! other! person! is! without! knowledge! of! the! offer.

When! the! driver! arrived! at! the! car! park! it! was! impossible! to! a! read,! let! alone! understand! the! terms! and! conditions! being! imposed.! Upon! further! research! it! is! apparent! that! the! initial! entrance! signs! in! the! car! park! are! poorly! located (too! high,! on! the! passenger! side! of! the! vehicle,! not! visible! from! drivers! side),! invisible! after! dark! (not! lit,! too! high! to! be! lit! by! virtue! of! reflecting! any! vehicle! headlights,! particularly from! a! moving! vehicle! entering! the! car! park! from! a! 30MPH! road),and !the! terms! and! conditions! illegible.! As! a! result,! the! driver! did! not! have! a! fair! opportunity! to! read! about! any! of! the! terms! and! conditions! involving! this! charge.

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END OF PART 1

MC321

PART 2
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5) The ANPR System is Neither Reliable nor Accurate.

The! Euro Car! Parks! Notice! to! Keeper! (NtK)! shows! no! parking time,! merely! two! images! of! a! number! plate! corresponding! with! that! of! the! vehicle! in! question.! There! is! no! connection! demonstrated! whatsoever! with! the! car! park! in! question. The! Notice! to! Keeper! states: “On! the 14/08/2018 the! vehicle:! LS67 SXC entered! Harefield retail park ,! at! 21:39:36 and! departed! at! 22:05:38 on 14/08/2018. ”These! times! do! not! equate! to! any! single! evidenced! period! of parking.! By! Euro! Car! Parks! own! admission! on! their! NtK,! these! times! are! claimed! to! be! the! entry! and! exit! time! of! the! vehicle.!!! There! is! no! evidence! of! a! single! period! of parking and! this! cannot! reasonably! be! assumed. Since! there! is! no! evidence! to! actual! parking! times! this! would! fail! the! requirements! of! POFA! 2012,! paragraph! 9(2)(a),! which! states; “Specify! the! vehicle,! the! relevant! land! on! which! it! was! parked! and! the! period! of! parking to! which! the! notice !relates. ”Paragraph! 21.3! of! the! BPA! Code! of! Practice! states! that! parking! companies! are! required! to! ensure! ANPR! equipment! is! maintained! and! is! in! correct! working! order.

I! require! ECP! to! provide! records! with! the! location! of! the! cameras! used! in! this! instance,! together! with! 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! ‘grace! periods’! (specifically! the! time! taken! to! locate! any! signs,! observe! the! signs,! comprehend! the! terms! and! conditions,! decide! whether! or! not! to! park !or! leave)! are! of! significant! importance! in! this! case( it !is! strongly! suggested! the! time! periods! in! question! are! de! minimis from! a! legal! perspective),! and! the! parking charge! is! founded! entirely! on! two images! of! the! vehicle! number! plate! allegedly! entering! and! leaving! the! car! park !at! specific! times! (26! minutes! and! 02! seconds! apart),! it! is! vital! that! ECP! produces! the! evidence! requested! in! the! previous! paragraph.

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6) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras. Paragraph! 21.1! of! the! BPA! Code! of! Practice! 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! Code! of! Practice 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 to! accurately! explain! 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.!

The! Euro! Car! Parks’! sign! in! the! Harefield retail! car! park! (see! Figure 4. 2) states: !“We! are! using! cameras! to! capture! images! of! vehicle! number! plates! and! calculate! the! length! of! stay 24 hours a day Monday to Sunday including bank holidays”

Specifically! missing from! this! sentence is! the! vital! information! that! these camera images! would! be! used! in! order! to! issue! Parking! Charge! Notices. There! is! absolutely! no! suggestion! in! the! sentence! above! that! the! cameras! are! in! any! way! related! to! Parking! Charge! Notices.!!! The! only! reference! to! Parking! Charge! Notices! on! Euro! Car! Parks’! sign! makes! no! mention! of! Parking! Charge! Notices being! issued! as! a! result! of! images! captured !by! the! ANPR! cameras! and! instead! merely! states! (see! Figure! 4.2): “This! car! park! is! controlled,! failure! to! comply! with! the! following! will! result! in! the! issue! of! a! £90! Parking! Charge! Notice”.

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:

A! trader! must! ensure! that! a! written! term! of! a! consumer! contract,! or! a! consumer! notice in! writing,! is! transparent.

A! consumer! notice! is! transparent! for! the! purposes! of! subsection! (1)! if! it! is! expressed! in! plain! and! intelligible! language, and! it! is! legible.

Additionally Paragraph 69:! Contract terms that may have different meanings:!

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! because! the! operator 'fails to identify its commercial intent':

(Legislation LINK)

Misleading! omissions:! 6.-(1)! ''A! commercial! practice! is! a! misleading! omission! if,! in! its! factual! context,! taking! account! of! the! matters! in! paragraph! (2)

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.

!

7) 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 - 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.

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.

!

End.

Coupon-mad

Additionally in the Euro Car Parks Ltd appeal refusal letter they stated that I had stayed more than 60 minutes (see figure 1.4 below), which Figures 1.1 – 1.3 prove incorrect.

Ouch!

Go through the whole appeal with a fine tooth comb, to avoid major errors with 'me, myself, I' in an appeal where you are not meant to be saying (or implying by mistake) who was driving!

MC321

OH SNAP!!! I LET ONE GO!!!

I shall do so this morning.

Other than that, all good?

MC321

So today, after a long review of my appeal I received the verdict.

POPLA allowed my appeal so that is a massive up yours to ECP..

The grounds the accepted it on was signage again. EPC only provided one photo of the dark car park, which I provided mulitple...

PHOTOS DO HELP, SO TAKE THE TIME TO TAKE THEM!!!

There was nothing on the review regarding my telematics evidence, so I don't know if they would or would not have accepted it.

Thank you again Coupon-Mad and Redx

Time for a pint, Have a good weekend!!

Coupon-mad

Well done to you!