Help with POPLA appeal

Mora

I went to watch a movie at the Light cinemas with my kids on 04/08/18.

I spent first 25 minutes trying to get a parking ticket.
I tried the first machine which didn't work and had to stand in a long queue to try the second one near the Light cinema. I followed the instructions carefully and put £3:00 coins but didn't get the receipt and the coins were not returned either. So I went inside the cinema to enquire and they suggested to ring the number on the machine. I tried calling the number but couldn't talk to anyone as it was just ringing and no-one answered. Then I used my card and finally got the receipt. I had to rush as I had spent more than half an hour sorting this, the movie I had gone to watch had started and another movie I could see with the kids was about to start.
By the time the movie finished it was 30 mins over my parking time, I paid £1.50 in coins again but didn't get the receipt or the the coins again.
I had paid £4.50 in coins and £1.50 using my card on that day.
I have evidence of me calling the number and the receipt for the card payment.

I received a parking charge notice from Euro Car Parks on the 10/08/2018 stating that I entered the car park at 18:11 and exited at 21:01, staying for 2 hours and 50 minutes and permit purchased did not cover the entire duration of parking.

I appealed to Eurocar parks describing the situation and the fact that the machine was faulty but they have rejected the appeal and have given me the option to pay £60 or appeal to POPLA.

Should I ignore it now or appeal to POPLA?

If I do need to appeal to POPLA, Which of the following points should I use in my appeal?

1)No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012, was served too late and no 'Notice to Driver' was served whilst the car was stationary.
2) No Landowner Authority
3) BPA Code of Practice - non-compliance
4) The unclear signs and lack of proof of any legitimate interest/any right to sue customers distinguishes this matter from the Parking Eye v Beavis case.
5) Lack of adequate signage/incorrect signage !!!8211; no contract with driver.
6) The ANPR system is neither reliable nor accurate.

Thanks in advance for your support and guidance.

Le_Kirk

Frustration of contract as THEIR machine failed to produced a valid, paid for ticket/receipt. Look up Frustration of contract using the search facility on this forum only, change threads to posts in the advanced option.

Redx

chuck everything in, INCLUDING frustration of contract

Snakes_Belly

These PPC's must know what the optimum times are for their machines to need emptying/servicing. I guess that the first machine was full and went out of service.

What really annoys me is that the PPC's don't view the motorist that is parking as a customer for whom they should be providing a service. They have ruined your evening and they should be compensating you.

Mora

Exactly.. I am so angry and frustrated.

Coupon-mad

1)No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012, was served too late and no 'Notice to Driver' was served whilst the car was stationary.

Not sure why you say that, unless it was late (doubtful IMHO).

I think you've been looking at an OLD version of a POPLA appeal as this is pointless too:

6) The ANPR system is neither reliable nor accurate.

Mora

This is my POPLA appeal.
Can I still include
1) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
even though I had sent Eurocar park a reply online asking them to cancel the notice which they denied.
2) Should I add the point on "Grace period"

I would appreciate feedbacks.
Thanks,
Mora.
(P.S: I am unable to copy the photos)


POPLA Ref …………..
Civil Enforcement Parking Charge Notice no …………..

A notice to keeper was issued on …04/08/2018….. and received by me, the registered keeper of vehicle …….. for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at - .................. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons

1) 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.
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) Frustration of contract
5) No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
6) Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
7) The ANPR System is neither Reliable nor Accurate
8) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.


1) 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 or 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 was 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 shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:




Figure 1: Beavis sign

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’ main car park sign on the Waterfront is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure 2).


Figure 2: Walsall Waterfront Leisure car park - main car park sign close-up.
The image in Figure 2 shows a close up of the main car park sign in the better lighting conditions as compared to 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 payment machine that can be seen obscuring access in Figure 3. The camera was held above head height so as to capture as close an image as possible; therefore it cannot be assumed that this is the view a person would have when standing below the sign. It should be emphasised that, when viewed from ground level, the text is even more difficult to read than it is in Figure 2). Figure 3 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 2. Figure 3 shows clear evidence that:
• The sign is positioned high on a pole, making it difficult to read.
• The terms are made even harder to read due to the positioning of car park payment machine making it very difficult to get close to the sign.
• The sign is not lit from above but is lit only by the street lights (mostly from the one behind it) again making it difficult to read.

Figure 3: Walsall Waterfront Leisure car park - main car park sign

Figure 2 and Figure 3 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 fees (see Figure 2) are confusing and ambiguous, for example, what fee applies at the time of visit 18:00 on a Friday evening? There is a daytime fee, an evening fee, a weekend fee. There is also a different free for Hotel guests. The section in red text at the bottom of the sign (see Figure 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 sunset in a car park without its own lighting or without any signage being adequately lit) that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.

Figure 4: Approach to the car park indicating lighting conditions and poor signage
Figure 4 shows the approach to car park in an image taken in better lighting conditions as per the occasion for which the PCN has been issued. This image clearly shows poor signage on approach to the car park itself, how poorly lit the car park entrance. There is a small sign on the left with very little information and one on the right facing the traffic entering but the main sign with the pricing details and other related information is facing the opposite direction.

Figure 5: Car park entrance from angle at which a vehicle approaches.
Figure 5 shows the car park entrance from the angle at which it would be approached in a vehicle 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:
1. 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 12 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.
To expand upon the latter point, further research confirmed there are two signs at the entrance to the Walsall Waterfront Leisure car park. Figure 6 shows the location of these three signs, indicated by stars (*).

Figure 6: Position of entrance signs and path of vehicles upon entry.
The entrance sign to the right of the entrance (from the perspective of a vehicle entering the car park) contains a substantial amount of text; this includes the pricing details and other related information and is facing the opposite direction of vehicles entering the car park.
This text is very small – impossible to read whilst in a moving vehicle – and difficult to read in daylight whilst on foot (let alone from a moving vehicle after dark). The entrance sign to the left of the entrance (from the perspective of a vehicle entering the car park) is the sign that states the car park is Pay & Display and doesn’t have much detail. As previously discussed, the issue with this entrance sign is not compliance in terms of wording/format, more positioning and illumination. Specifically, I will discuss the factor that is key in establishing non-compliance with the BPA CoP (Appendix ; the height of the sign.
The measurement from the ground to the bottom of the relevant entrance sign is 230cm. The measurement from the ground to the top of this sign is 320cm. The blue ‘P’ (indicating parking) and the text “Pay & Display” is included in the upper third of this sign, 290cm-320cm from the ground.
The main car park sign is angled so as to look directly in to the car park, pointing at 90 degrees from any approaching traffic, as shown in Figure 7 below.



Figure 7: Angle of car park sign in relation to approaching traffic.
Keeping in mind the locations of the sign posts in the car park, especially the first one anyone would come across whilst driving in, would it not be sensible to angle all entrance signage towards oncoming traffic? Indeed this seems to be the method employed in various other car parks observed whilst researching for this case – Figure 8 shows the Crown Wharf Shopping car park signage, located just on the other side of the Wolverhampton Street. In the absence of direct/indirect light for the entrance signage, angling the signs in the direction of oncoming traffic would increase the likelihood of headlights illuminating them upon approach.
Figure 8: Crown Wharf shopping car park signage.
It is important at this point to reiterate that vehicles approaching/entering the car park do so from a 30mph street, as indicated in Figures 6 and 7. When discussing entrance signs, the BPA CoP (Appendix suggests a typical approach speed of 15mph to enter a car park by immediately turning off a 30mph road.
Figure 7 clearly illustrates that vehicle headlights would never be shining in the direction of the relevant entrance sign in order to illuminate it and therefore enable the driver to A) see it and stand a chance of reading it.
Taking figure 6 into account and based on the angle of the entrance sign in relation to the approach road as illustrated in figure 7, it is clear that the entrance sign to the Walsall Waterfront Leisure car park is wholly inadequate. In order for the vehicle lights to shine on the entrance sign the vehicle would have to make an unnatural turn of over 90 degrees, within less than 5 metres, at a speed of around 15mph (using BPA CoP suggested approach speeds). This is impossible. Even if this manoeuvre was somehow performed, by the time the vehicle has turned to face directly towards the sign, it would be way too close for its headlights to illuminate a sign positioned 230cm from the ground.

Performing some simple calculations seeks only to reinforce the point that the entrance signs are non-compliant and invisible to a driver approaching in the dark. Take the length of the vehicle identified on the NtK, a Skoda Octavia Estate (4685mm) and the BPA’s suggested approach speed of 15mph. With an entrance sign positioned approximately one car length from the approach road as is the case here, travelling at 15mph the vehicle would be past the entrance sign in less than ¾’s of a second. Moving on from the non-compliant entrance signs, I wish to share one further image that clearly illustrates the inadequate signage at the Walsall Waterfront Leisure car park.
It is therefore suggested once again that Figures 5 serves to reinforce the earlier point made (in relation to Figures 2 and 3) 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 West Dyke Road car park do not clearly mention the parking charge which is hidden in small print (and does not feature at all on all but one of the signs within the car park site). Large 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 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 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 car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
1. A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

2. A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and, consequently, she was NOT deemed bound by them.
This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:
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), 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.

Mora

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.
In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper 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 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.
Furthermore, the vital matter of full compliance with the POFA 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 cannot transfer the liability for the charge using the POFA.
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 - 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) Frustration of contract:
After partking the vehicle in question ................on 04/08/2018 at the Walsall Waterfront Car park, where the driver went to watch a movie with 2 young kids at the Light Cinema. On attempting to use the parking machine, they spent 25 minutes trying. The driver tried the first machine which didn't work and had to walk across the parking lot to the second one. This one had a long queue and they had to wait in the queue. They followed the instructions carefully and put £3:00 coins but didn't get any receipt or ticket and coins were not returned either. So went inside the Light cinema to enquire. They suggested ringing the number on the machine. They tried calling the number but couldn't talk to anyone as it was just ringing. Then they used my card, finally got the receipt as they were in a hurry, placed the receipt in the car, and went to watch the movie in light cinemas. They had to watch another movie as the one they had gone to watch had started already.
By the time this movie finished, it was 30 mins over my parking time. They paid again using coins, for the extra time but didn't get the receipt again.
Thus any overstay was not the fault of the driver, and therefore there is a frustration of contract.

Mora

5) No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.
Furthermore, 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’ NtK simply claims “the vehicle was parked at Walsall Waterfront car park.”
The NtK separately states that the vehicle “entered Walsall Waterfront car park at 18:11 and departed at 21:01”. At no stage do Euro Car Parks explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.
Euro Car Parks NtK states “we are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay”. It is not in the gift of Euro Car Parks 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 are not able to definitively state the period of parking.
I require Euro Car Parks 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.

6) 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 unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
The PCN in question contains two close-up images of the vehicle’s number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).
The time and date stamp has been inserted into the letter underneath (but not part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

7) 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 04/08/2018 the vehicle: XXXXXXX entered Walsall Waterfront Car Park, at 18:11 and departed at 21:01 on04/08/2018.”
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 purchase a ticket and either pay 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, it is vital that ECP produces the evidence requested in the previous paragraph.

8) 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’ main sign in the Walsall Waterfront car park (see Figure 2) states:
“We are using cameras to capture images of vehicle number plates and calculate the length of stay between entry and exit at all times 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 2):
“This car park is controlled, failure to comply with the following will result in the issue of a £100 Parking Charge Notice (£60 if paid within 14 days of issue).”
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.
(2) 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':
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) –
(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.


I therefore request that POPLA uphold my appeal and cancel this PCN.

Mora

I had sent an appeal to POPLA with the following points:

• 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.
• The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
• No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
• Frustration of contract
• No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
• Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
• The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

I have received this Operator evidence.
PARKING ON PRIVATE LAND APPEALS
EVIDENCE CHECKLIST



Verification code

Vehicle registration mark

Please put a splitter page between each section

Evidence Tick sent No of pages
A Evidence checklist 
1
B Case summary and rules/conditions 
2
C Parking charge notice and any notes 
2
D Registered keeper details and liability trail 
1
E Original representations and notice of rejection 
4
F Images, plans etc. 
10
G Other evidence 
9


I confirm that the Appellant has been sent copies of all evidence in accordance with
current POPLA requirements
Emilija S
01/11/2018
signature date


ECP EVIDENCE RE POPLA CASE NUMBER 2412578003

xxxx Vs Euro Car Parks


PCN Number - xxxxx
VRM – xxxxx
Date – 04/08/2018
Time – 21:01
Car Park – Walsall - Waterfront
Breach of Terms and Conditions – The P&D/permit purchased did not cover the date and time of parking

Please find enclosed the evidence pack:


1. (B) Case Summary and Rules/Conditions
2. (C) Copy of Parking Charge Notice XXXX Date – 04/08/2018 Time – 21:01
3. (D) Registered Keeper Details and Liability Trail
4. (E i) Original representation received from XXXXXX
5. (E ii) ECP Notice of Rejection
6. (G) ECP response to the POPLA appeal logged by XXXXXX
7. (F) Signage Location Plan and images of Car Park

1. Case Summary and Rule/Conditions

This location is managed by Automatic Number Plate Recognition (ANPR) technology which takes a picture of the vehicle entering and exiting the site, these pictures are timed and therefore the duration of the stay can be calculated. All vehicle registration numbers are then matched against the data produced by the various means of paying for parking and a list of registration numbers where no payment has been made or where the motorist has stayed longer than the period paid is produced. After requesting vehicle keeper details from the DVLA, a Notice to keeper is sent to the keepers of the vehicles on this list. As a consequence at ANPR locations there will be no PCN issued to the windscreen neither will there be photographic evidence of the windscreen supplied in operator evidence packs.

Parking Charge Notice XXX was issued to vehicle XXX on the 04/08/2018 (date of event) at the Walsall - Waterfront car park for breach of terms and conditions: The P&D/permit purchased did not cover the date and time of parking.

The Walsall - Waterfront car park operates an ANPR + P&D camera controlled operation with the following parking tariff applicable.

Charges apply at all times

24 Hour Pay & Display / Pay by Phone

Monday – Friday 09:00 Hours to 17:00 Maximum stay 4 hours

Up to 2 Hours £1.50
Up to 4 Hours £3.00

Monday – Friday 17:00 Hours to 09:00 Hours All tickets expire at 09:00 Hours

Up to 2 Hours £1.50
Up to 4 Hours £3.00
Up to 16 Hours £4.00
Saturday - Sunday Up to 2 Hours
£1.50
Up to 4 Hours £3.00
Up to 8 Hours £4.00
Up to 24 hours £8.00

Hotel Guest Rate Monday – Sunday

17:00 Hours to 09:00 Hours £3.50
Normal tariff applies outside the above hours

An official appeal representation was received from XXXXXX on the 28/08/2018 stating that she spent first 25 minutes trying to get a parking ticket. She said that she paid £4.50 in coins and £1.50 on her card, however the payment that was made in coins no ticket was issued.

Euro Car Parks then responded to XXXXXX advising the car park is operated by Automatic Number Plate Recognition (ANPR). Cameras capture an image of vehicles entering and leaving the car park and calculate their length of stay on site.

Signage is clear drivers must purchase a valid pay and display ticket for the full duration of their stay.

A pay and display ticket matching your vehicle registration was purchased for £1.50 - this would have entitled your vehicle to park for up to 2 hours according to the clearly displayed tariff.

Your vehicle entered at 18:11 and exited at 21:01, a total stay of 2 hours and 50 minutes.

The P&D/permit purchased did not cover the date and time of parking and therefore the notice has been issued correctly and will remain payable.

XXXXXX’s vehicle entered at 18:11 and exited at 21:01, a total stay of 2 hours and 50 minutes. The P&D/permit purchased did not cover the date and time of parking and therefore the notice has been issued correctly and should remain payable.

2. Copy of Notice to Keeper (NTK) sent to the registered keepers address (FRONT)


(BACK)



3. Registered Keeper details and Liability Trail

Parking Charge Notice (PCN) XXXX was issued on the 04/08/2018 (date of event). As the car park is camera controlled the vehicle details were forwarded to the DVLA to obtain the registered keepers details. The DVLA had provided the following details as the registered keeper;

XXXXXX

XXXXXX then appealed the PCN and confirmed to be the driver on the day in question.

Therefore the liability remains with XXXXXX, as the driver and the registered keeper of the vehicle.

Our PCN (Parking Charge Notice) is the first communication with the registered keeper – this is referred to as the Notice to Keeper or Notice To Owner

The PCN (NTK/NTO) has been checked by both the BPA and the IPC and we have confirmation that our PCN (NTK/NTO) and has been approved as compliant with POFA

The PCN (NTK/NTO) has been checked by Gladstone Solicitors who specialise in assisting private car park operators – legal advice and pre legal advice with regards signage and adhering to POFA and both code of practice

Please be advised once the registered keeper has been sent the PCN (NTK/NTO) if there is no response, payment, appeal, serviceable address of the driver – ECP process a Notice To Keeper – this is a “reminder letter” and sent in reference to the PCN (NTK/NTO) that has not been responded to.

If we are in receipt of a serviceable address of the driver – the PCN (NTK/NTO) is re-issued

If the registered keeper is in receipt of the PCN (NTK/NTO) and has passed to the driver and the driver appeals – we will respond to the appeal strictly following the code and ensure any/all communication is sent to the driver (we would not at this stage re-issue the PCN)

We have been advised that the above is standard practice for all private car park operators in regards to PCN (NTK/NTO) issued on Automatic Number Plate Recognition car parks

4. Original representation sent by XXXXXX


Parking Charge Reference: XXX Vehicle Registration: XXXX
Email Address: XXXX@n
Name: XXXXXX


Address:


Home Telephone: Mobile Telephone: Work Telephone:


Reason For Appeal: Hi

I received a parking charge notice on the 10/08/2018 (Reference number: XXXXX)(Registration number:XXXX).
I would like to appeal as I have proof of parking receipt with me.

And I would like to explain that I spent first 25 minutes trying to get a parking ticket on 04/08/18.

I tried in the first machine which didn't work and had to stand in a long queue to try the second one near the Light cinema. I followed the instructions carefully and put £3:00 coins but didn't get the receipt and the coins were not returned either. So I went inside the cinema to enquire and they suggested to ring the number on the machine. I tried calling the number but couldn't talk to anyone as it was just ringing and no-one answered. Then I used my card and finally got the receipt. I had to rush as I had spent more than half an hour sorting this and the movie in Light cinemas was going to start.

By the time the movie finished it was 30 mins over my parking time, I paid £1.50 in coins again but didn't get the receipt or the the coins again.

I had paid £4.50 in coins and £1.50 using my card on that day.

I have evidence of me calling the number and the receipt for the card payment.

Can you consider these points and cancel the parking charge notice and fix the machines please?

I am the Driver & Registered Keeper


28/08/2018


Attachment*


5. ECP notice of rejection to appeal




6. ECP response to POPLA appeal logged by XXXXXX

This location is managed by Automatic Number Plate Recognition (ANPR) technology which takes a picture of the vehicle entering and exiting the site, these pictures are timed and therefore the duration of the stay can be calculated. All vehicle registration numbers are then matched against the data produced by the various means of paying for parking and a list of registration numbers where no payment has been made or where the motorist has stayed longer than the period paid is produced. After requesting vehicle keeper details from the DVLA, a Notice to keeper is sent to the keepers of the vehicles on this list. As a consequence at ANPR locations there will be no PCN issued to the windscreen neither will there be photographic evidence of the windscreen supplied in operator evidence packs.

Parking Charge Notice XXXX was issued to vehicle XXXX for breach of terms and conditions: The P&D/permit purchased did not cover the date and time of parking onsite at the Walsall
- Waterfront car park. This car park operates a 24 hour ANPR + P&D operation therefore all vehicles are required to purchase a valid ticket for the full duration of stay within the car park.

In XXXXXX appeal to POPLA – she stated the following:

• 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.
• The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
• No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
• Frustration of contract
• No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
• Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
• The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

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 2 hours and 50 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 Walsall - Waterfront (Figure 2)
• 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.
• Figure 3 is the transaction made matching the vehicle XXXX; I can confirm that the ticket did not cover the full duration of parking.
• 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.
• Figure 4 is where I can confirm our PCN is POFA compliant.
• Euro Car Parks do not operate CCTV
• Figure 5 shows the authority agreement by JLL.
• 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.

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.

Figure 1


Figure 2


Figure 3


Figure 4





Figure 5



7. Signage location plan and images of signage onsite


They have also put loads of photos which i couldn't upload here.

I would appreciate any help with how i should respond.

Thanks,
Mora.

Coupon-mad

I think I would state this in the Portal:

POPLA COMMENTS

The operator has failed to show:

- what happened to the coins I paid into the second machine near the Light cinema which I asserted was not working and did not issue a PDT ticket. They have reproduced my appeal which told them this but have failed to evidence that the machine was working for cash payments.

- POPLA is reminded that you are an evidence-based appeals service ONLY, which requires omissions in evidence to be noticed.

As they produced fig 3 (card payment evidence), it would have been easy for ECP to produce a similar redacted list of other successful cash payments made by other drivers at the machine near the Light cinema, but they chose not to.

- they have also failed to show any evidence as to what happened to my additional £1.50 at the end, again paid into the machine.

- As I cannot prove a negative (no PDT ticket was produced) I would have expected a reputable operator, which does have access to machine records, to cast doubt on my cash payments but they just ignored that part of my appeal.

- So, it is an undisputed fact that I paid £4.50 in coins and £1.50 using my card, a total of £6, which is an overpayment.

Where a point is raised on an appeal, the burden always shifts to the operator to rebut it. POPLA cannot assume the machines were working for cash payments in the absence of evidence of any cash payments (mine or that of other drivers).

- If they can provide fig 3 - a card payment recorded by the machine - they should also have shown a similar transaction list to prove that the machine was recording cash payments too, and not just swallowing coins (which it was).

The operator has failed to satisfy me, or POPLA, that the PCN was properly issued.