Euro car parks again - need advice pls.

Shanks666

Hi, I'm a Newbie.

The driver parked in a Poundland car park that recently contracted everything to Euro Car parks.
20 minute parking limit. the driver didn't notice the changes, parked for 93 minutes. So they over stayed by 73.

Anyway, followed the guide:
1. Keeper sent a letter to poundland. rejected.
2. Keeper contacted euro car parks, got the POPLA code.
3. keeper appealed, lost the appeal.

I'm the registered keeper. Didn't admit to be the driver, nor did I provide the driver's name.

Looking for advise.

Below is my appeal and the rejection.

Dear Sir/Madam

I am not liable for the alleged parking charge and would like to appeal against it, based 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

1. No contravention of the two terms on the bottom of the sign that could give rise to £100 parking charge.

The two contraventions listed under the words ''Failure to comply with the following will result in a £100 PCN...'' are nothing to do with any overstay - i.e. the sign doesn't create a contravention by overstaying. The driver did pay at the machine, the driver did display a valid ticket and the driver did park within the bay lines. 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 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 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 for disabled people, which under the EA, must be longer than the bare minimum times set out in the BPA CoP. Ten minutes is not enough for disabled patrons and it is contended that the landowner must have discussed and addressed the issue of disability before allowing this operator to commence any rigid rules of parking enforcement and time allowed for the tariff.

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 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 £100 PCN (£60 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 and no disabled passenger with statutory rights.

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 disabled bays there are no visible signs that tell drivers/passengers about £100 charge. This is a BPA CoP breach of paragraph 18.9:

''So that disabled motorists can decide whether they want to
use the site, there must be at least one sign containing the
terms and conditions for parking that can be viewed without
needing to leave the vehicle. Ideally this sign must be close
to any parking bays set aside for disabled motorists.''

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.




6. 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:
!!!8226; be registered with the Information Commissioner
!!!8226; keep to the Data Protection Act
!!!8226; follow the DVLA requirements concerning the data
!!!8226; follow the guidelines from the Information
Commissioner!!!8217;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.


Finally, in circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

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

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

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

Misleading omissions: 6.!!!8212;(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)!!!8212;
(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 merely that CCTV is in operation for security within the car park, and in fact the signs say the site is patrolled, so no driver would have any idea that ANPR was being used to calculate total stay time and that the 'expiry' time on the PDT was redundant. Anyone returning to a car in time, going by the ticket, would consider they had complied with the rules of this car park, even if they then had to spend minutes sorting out and loading/strapping the baby, buggy, and the needs of the disabled passenger, then carefully driving out.

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

Regards

xxxxxxxxxxxxxx
Registered Keeper

Appeal in next post...

Shanks666

....continued....popla appeal rejection....

POPLA assessment and decision: 24/07/2019
Decision: Unsuccessful
Assessor Name: Grahame Hill
Assessor summary of operator case:
The operator has issued the Parking Charge Notice (PCN) to the keeper of the vehicle for being parked longer than the maximum period allowed
Assessor summary of your case:
The appellant’s case has a series of 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 The appellant has provided evidence to support the appeal.
Assessor supporting rational for decision
The appellant has not identified as the driver on the day of the parking event. As such, I am considering the matter of keeper liability. The operator has provided photographic evidence of the signage on the site, which states: ‘maximum stay 20 minutes’ and that a failure to comply with the terms and conditions will result in a Parking Charge of £100 The operator has also provided Automatic Number Plate Recognition (ANPR) images of the vehicle, entering the car park at10:31, and exiting at12:04, totalling a stay of 1 hours 33 minutes. The appellant has a series of grounds which I will address separately or together as appropriate. • No contravention of the two terms on the bottom of the sign that could give rise to £100 parking charge. • 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. • . 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 • The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the Protection of Freedoms Act (PoFA) 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. • No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. We accept witness statements from operators to confirm they have landowner authority to operate at a site, and we do this because it is only a small part of confirming on the balance of probabilities that they have landowner authority. The fact that they have signs, camera, personnel, etc, at the site also supports that proof. In this case, the operator has supplied signed documentation of authority. As such, I am satisfied they are authorised to issue charges on this site. • Breach of the BPA Code of Practice and ICO Code of Practice rules for ANPR and Surveillance Cameras The appellant has referred to the ICO Code of Practice rules for ANPR and Surveillance Cameras. Any breaches of the ICO code of practice must reported to the ICO. It is not the role of POPLA to investigate breaches of the ICO code. With regard to the British Parking Association (BPA) code of practice and the Automatic Number Plate Recognition (ANPR) systems When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. As this issue holds no impact on the driver’s ability to comply with the terms on the date of the parking event, I cannot consider it relevant to the assessment. Should the appellant wish to pursue any dispute regarding this matter, they would need to contact the operator directly. In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate. Independent research has found that the technology is generally accurate. Unless POPLA is presented with sufficient evidence to prove otherwise, we work on the basis that the technology was working at the time of the alleged improper parking. As I accept there is the possibility for inaccuracies, I am happy to accept any evidence that suggests the appellant’s vehicle was elsewhere for this duration of time. However, as the appellant has not provided evidence to demonstrate otherwise, I will work on the basis that the technology is accurate • No contravention of the two terms on the bottom of the sign that could give rise to £100 parking charge As the PCN was issued for exceeding the maximum stay the two terms are not relevant to this assessment. • 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 must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “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.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act 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. The Act then moved on to define “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 independent assessment 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 is sufficient to bring the parking charge to the attention of the motorist. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence provided, the driver exceeded the maximum stay period, and therefore did not comply with the terms and conditions of the car park. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

tboo

Not sure how anyone can shop in Poundland for over an 1hr and a half either. Were there other shops nearby by any chance?


Read what you have missed on the 1st page - part 3



**NEWBIES!! PRIVATE PARKING TICKET? OLD OR NEW? **READ THESE FAQS FIRST!** Thankyou!

Shanks666

Hi Tboo.

It's a high street with other shops near by and across. But the parking area is only for poundland clientele.

"Read what you have missed on the 1st page - part 3" - any chance you can just tell me what you mean?

Thanks.

Quentin

Throughout here you are advised never to reveal the driver

You need to go through your posts and edit them to remove details of who was driving

The ppcs monitor this forum and can use posts in your thread against you

Fruitcake

You are now in ignore mode unless you get real court papers in the next six years.
Even though PoPLA is over and done, you should still edit your post to remove information about who did what.
Only ever refer to The Driver and The Keeper, who are two different people.

Without seeing the NTK, signs, or contract/witness statement we can't comment on the assessor's decision, but it wouldn't be the first time one has got things wrong because they are not properly trained.

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Shanks666

Thank you all for the guidance - have amended my posts accordingly.

tboo - can you remove reference to my message pls

Fruitcake --- NTK and signs are correct as per BPA notes. How do I get a copy of the contract and witness statement.

Also, assuming they are correct and everything is followed, then what?

Thanks.

Redx

you cannot get a copy of the contract or WS either , you have no right to demand either at this moment in time

if this goes to court, you can insist they are produced for the judge

the claimant has 6 years to try a court case, so you are in limbo for 6 years , waiting , tick tock

Shanks666

Thank you Redx.

Fruitcake

Shanks666 wrote: »

Thank you all for the guidance - have amended my posts accordingly.

tboo - can you remove reference to my message pls

Fruitcake --- NTK and signs are correct as per BPA notes. How do I get a copy of the contract and witness statement.

Also, assuming they are correct and everything is followed, then what?

Thanks.

Are you sure? As I said, we can't comment because we haven't seen them. In any case, just because they meet the BPA's low standards doesn't mean they meet the strict PoFA requirements.
In any case, it doesn't appear as though you challenged the scammer on NTK PoFA compliance, so you may have missed a trick.

Did you see the witness statement at the PoPLA stage? Did you get the opportunity to comment on it or rebut anything in it?

Anyway, you are in ignore mode as already advised unless you get real court papers.