Popla appeal

rackemup

Hi everyone,


Entered Euro Car Parks land, stayed with vehicle, left 18 minutes later and now on an £85 fine. I read the newbies section and took some templates which I found on this forum and I want to see if you can look over my appeal before I send it tomorrow (go on holiday for 3 weeks on Saturday so need to send it off). Hope you can assist/help.

I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:


1. No contravention of the two terms on the bottom of the sign that could give rise to £100 parking charge.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

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


6. BREACH OF PROTECTION OF FREEDOMS ACT 2012-


7. No grace period given
8. No keeper liability



1. No contravention of the two terms on the bottom of the sign that could give rise to £85 parking charge.

The two contraventions listed under the words ''Failure to comply with the following will result in a £85 PCN...'' are nothing to do with any entry - i.e. the sign doesn't create a contravention by timing of entry and exit of the land. The driver did not leave the vehicle so didn’t park. There was no contravention of the terms as drafted.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

As a parking charge cannot be enforced against a keeper without a valid Notice to Keeper.
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.

This is the only evidence supplied to me as keeper appellant by Euro Car Parks, an image purporting to be of a notice within the plot of land in question. The image is not date stamped or independently verified for its authenticity. Please note that there is no visible indication of the liability of any party, least of all the registered keeper of any vehicle:

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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA, but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement




4. The signs in this car park are not prominent, clear or legible from all parking spaces, entrance to the car park a and there is insufficient notice of the sum of the parking charge itself

On the signage, the two contraventions listed under the words:

''Failure to comply with the following will result in the issue of a £85 PCN (£50 if paid within 14 days of issue)'' are nothing to do with any overstay which makes the signage ambiguous. 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, where there was no quantifiable tariff.

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.

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

Here, there is one sign indicating a tariff (at the pay station) and the hourly rate is the only salient figure. The wording is 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 in a busy car park such as the one in question.

At the entrance and in the parking bays there are no visible signs that tell drivers/passengers about £85 charge. This is a BPA CoP breach :

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this carpark and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

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

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.





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

This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor.

Members of the British Parking Association AOS are required to comply fully with such rules, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:

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

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

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

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

The BPA CoP says at paragraph 21.4:

It is also a condition of the Code that, if you receive and
process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information
Commissioner’s Office on the use of CCTV and
ANPR cameras, and on keeping and sharing personal
data such as vehicle registration marks.

This operator has ignored the surveillance camera rules and if they disagree they are put to strict proof of (i) to (iv) above.





6. BREACH OF PROTECTION OF FREEDOMS ACT 2012-
I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge.

Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

Figure 1: video entering Euro Car Parks’ main car park in question


The video shows entering through the main entrance. The euro caro parks sign cannot be seen from the video. It is inadequate and illegible in a number of ways:

* It is not facing the entrance to the car park, making it difficult to locate.

* There is a huge amount of text to be read.

* This text is crowded and cluttered with a lack of white space as a background.

* The sign is not facing the entrance to the car park so a driver cannot read it from the angle of approach.

* It would be a safety hazard for the driver to strain to read any of the wording on these 2 signs as they approached the entrance.

The BPA Code of Practice (Appendix sets the requirements for entrance
signs. 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…

In disputing points 1 and 2 above, the relevant entrance sign in this appeal case
is not readable by drivers when entering the car park and even when searching for a bay parking inside, nor is it readable and understandable at all times due to height, angle and text size.


7. NO GRACE PERIOD GIVEN-
BPA CoP Clause 13.2 - If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken..
BPA CoP Clause 13.4 - You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.


If the allegation involves an alleged overstay of minutes, the evidence must include the actual grace period agreed by the landowner. There is a failure to evidence the actual grace period that applies at this site or suggest that only one period applies, this will be disregarded as an attempt to mislead. In the absence of evidence, it would be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with the official BPA article by Kelvin Reynolds about 'observation periods' on arrival being additional and separate to a 'grace period' at the end. The photo shows an entrance of 14:55 and an exit of 15:13 which is below 20 minutes as detailed above.






Please consider the time needed at the start, before even finding a space, to arrive, drive round looking for a suitable parking bay allowing access for a larger vehicle and children, then prepare to get everyone safely out of the car, get to the pay station, queue behind others, then read the signage, decide to accept /decline the legible T&C’s, and then decide to leave or make payment. There was also the fact there was also a baby and toddler so there was equipment (pram ,etc.) that also needed to be unloaded and (once back to the car) repeat this loading and strapping in of both children, before leaving slowly through a very busy and narrow car park with queuing traffic, past pedestrians, and manoeuvring vehicles. In addition to this, the small size of the spaces makes it extremely difficult to carry out these tasks in a timely manner.

The BPA agrees:


''Good car parking practice includes ‘grace’ periods

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes on arrival and 10 minutes after parking time, depending on various factors, not limited to disability.”''



8. NO KEEPER LIABILITY- The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge-



As a parking charge cannot be enforced against a keeper without a valid Notice to Keeper.
As the keeper of the vehicle, it is my given 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.

This is the only evidence supplied to me as keeper appellant by EuroCarParks, an image purporting to be of a notice within the plot of land in question. The image is not independently verified for its authenticity. Please note that there is no visible indication of the liability of any party, least of all the registered keeper of any vehicle:

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.''




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

KeithP

Your thread title says PopLA appeal and that does look like a PoPLA appeal, but from your opening text it looks like you are yet to appeal to Euro Car Parks Ltd.

Have you appealed to ECP and had that appeal turned down?

rackemup

Hi - yes I followed the newbies guide and sent that template as the first stage to ECP. They rejected it and showed photos of the ECP sign, and a video still of time entering and time leaving. I was 18 minutes and didn’t leave the car. Then they mentioned about the 10 min grace period which they gave me. But no mention on the signage what the grace period is. I note the template says 10 min on entry and 10 min to exit however which I’m compliant with.

I took a video showing walking into car park. The ECP sign isn’t at the entrance, and as you approach the car park, it has its back to the driver so isn’t very clear to anyone on entry.

ECP said I can pay £50 within 14 days or it will be £85. And I can take this to popla. As the letter was addressed on the 2/3/19, I can only do this now anyway as was away so only just got it.

So that’s the template I come up with above

Le_Kirk

Did they send you a POPLA code?

rackemup

Hi Le Kirk, yes they said I can appeal through popla and sent me a reference number

Coupon-mad

I was 18 minutes and didn’t leave the car.

You will not win at POPLA with that (there is NO 'ten plus ten' grace period rule for cars that go in and out and don't pay) but try POPLA anyway, and ignore ECP if you lose.

Load of people are ignoring ECP after a loss at POPLA, no risk. Please don't ask about it if you do lose, search the forum for Euro lost POPLA, far easier for us all and you will learn more.

rackemup

I’m just going by the template with the ten on entry and ten on leaving :- ‘if you fail to evidence the actual grace period that applies at this site or suggest that only one period applies, this will be disregarded as an attempt to mislead. In the absence of evidence, it will reasonably taken to be a minimum of twenty minutes, (10 on arrival and 10 after parking time)’

That’s what I interpreted for my total time of 18 minutes. Is this not a true fact to use? ECP have noted that they gave me the grace period of 10 minutes which they reference to BPA code of practice 13.4 of 10 minutes.

Should I leave this argument out then? And Is there anything that you think I could do with adding or is this one good to go?

rackemup

My argument is that there is no grace period advertised so that’s why I’ve reasonably assumed the 20 minutes

Le_Kirk

rackemup wrote: »

My argument is that there is no grace period advertised so that’s why I’ve reasonably assumed the 20 minutes

Playing devil's advocate: -
How do you know about grace periods if they weren't advertised?

Coupon-mad

rackemup wrote: »

My argument is that there is no grace period advertised so that’s why I’ve reasonably assumed the 20 minutes

Wrong. Please don't say that, this is a waste of your time to even discuss.

These do not BOTH apply together if you never paid/displayed at all.

Try POPLA but ignore ECP if you lose. Simple. No more advice needed.

rackemup

Re devils advocate: I didn’t know about grace periods, it’s not advertised. Because of that I’m quoting the line from the original template appeal that’s in blue on the newbies ‘please read section’ which states 20 minutes will be reasonably taken.

Any comments on my popla appeal from anyone re the content?