Euro Car Parks - M&S - POPLA

hookguy

Hi all,

Have submitted a POPLA appeal for a parking issue with ECP. My appeal is as follows and focuses on the inadequate signage being the main focus as the fine is not clearly displayed.


I am the registered keeper and I wish to appeal a recent parking charge from Euro Car Parks. I submit the points below as an appeal to the parking charge notice:

1) No standing or authority to pursue charges nor form contracts with drivers
2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
3) The signage was inadequate so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
5) Non-Compliant Notice to Keeper

1) No standing or authority to pursue charges nor form contracts with drivers.

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

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

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

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

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

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

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) Inadequate signage and validity of contract.

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.

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.

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:

http://imgur.com/a/AkMCN

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.

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

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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 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.

Please see the following photos of the signs provided by the operator in my original appeal to them:

https://imgur.com/a/tOLVz6s

Note the inadequate prominence displayed to the parking charge itself, as well as the lack of charge displayed in the other sign. It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

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

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

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

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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.''

''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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

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

3) The ANPR system is unreliable and neither synchronised nor accurate

Euro Car Parks evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit. The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
(insert link)
The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. As Euro Car Parks are relying on images that do not show the vehicle being parked, this could easily be a case of two visits, or if the vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 3 hours.
The provision of the images does not indicate that the vehicle was parked for that specific time. The car park in question is known to be busy, and as such the vehicle in question may have been waiting for a suitable space. Euro Car Parks should therefore provide strict proof that the vehicle was parked for the times stated, and not merely in the car park. They should also provide strict proof that no double visit occurred.

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Euro Car Parks have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. As stated in the point above, since the signage was so poor this has not been clearly brought to the attention of the driver. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

In addition I question the entire reliability of the system. I require that Euro Car Parks present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

In addition to showing their maintenance records, I require Euro Car Parks to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is unreliable.


4) Non-Compliant Notice to Keeper

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is subject to the creditor meeting all of POFA’s requirements.
I set out below a non-exhaustive list of reasons why Euro Car Parks’ Notice to Keeper failed to comply with Schedule 4 of POFA:

Contrary to the requirements of Paragraph 9(2)(b), the Notice to Keeper did not inform the keeper that the parking charges have not been paid in full. In addition, contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). It simply includes a date, suggesting when the notice was produced. Also, and most importantly, contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not specify the period of parking to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park; these times do not equate to the period of parking.

I request that my appeal is allowed

hookguy

ECP have responed with the below, basically showing documents they have sent to me and dates, their response to my POPLA appeal and a map and plan of the signage as well as further photos (although all of them appear not to include the fine in clear letters!!). What shall I write in response to the below?

1. (B) Case Summary and Rules/Conditions
2. (C) Copy of Parking Charge Notice XXXXX
3. (D) Registered Keeper Details and Liability Trail
4. (E i) Original representation received
5. (E ii) ECP Notice of Rejection
6. (G) ECP response to the POPLA appeal logged
7. (F ) Signage Location Plan and images of Car Park


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 XXXXX was issued to vehicle XXXX for breach of terms and conditions:
Your vehicle was parked longer than the maximum period allowed at Marks & Spencer - Ecclesall Road.
This car park operates a maximum stay ANPR operation.
Statement:
 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 1 hour and 26 minutes (Figure 1)
 The signage clearly states the terms and conditions of parking, all drivers are required
to adhere to the maximum stay on site.
 Signage is visble when entering and inside of the car park and when entering private
land it would be the driver’s responsibilty to read the terms and conditions and adhere
to them. (Figure 2 – See Section 7). Also, please note the time and date stamped images
of the signage on site.
 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.
 Figure 3 confirms that the NTK is POFA compliant.
 Automatic Number Plate Recognition systems are effectively image processing and microprocessor devices with an internal reference clock based around a set of components referred
to as the ‘Real Time Clock chipset’ or RTC. The chipset uses a quartz crystal reference source
and will provide a reliable time reference dependant on a drift characteristic determined by
variations in local camera temperature. High fluctuations in local ambient can cause the RTC
to drift as much as 30 seconds a month and to counteract this an NTP server is utilised. The
NTP server is effectively a computer situated in a control room and takes a reference time
source from a GPS satellite and provides a hyper accurate time reference. All camera systems
operated by ECP are configured to request a time synchronisation from the NTP on a sixty
second basis. This ensures that all cameras have a universal time reference which is accurate
to a few thousandths of a second. Cameras also report a ‘heartbeat’ to our back office
environment, again on a sixty second basis, and this is used to establish camera operation;
logs of these transactions from all cameras are retained for approximately six months. On
capture of an ANPR read this is transmitted to a similar back office environment where the time
16 Maximum Stay
difference between that tagged on the raw capture and the ‘real time’ of the servers is again
tested.
 All ANPR cameras used by ECP are compliant under the home office approval framework as
stated under NAAS/NASP.
 Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the
registered keeper’s responsibility to inform of the full name and UK Serviceable address within
28 days beginning with the day after the notice was given. If the full amount remains unpaid,
under Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’), Euro Car Parks have the
right subject of the Act to recover from the keeper of the vehicle at the time it was parked so
much of that amount which remains unpaid.
 Landowner Authority contract between Euro Car Parks and Marks and Spencer – figure 4.


Thank you to everyone in advance for any help you can provide