Euro Car Parks - lease car, I jumped the gun with appeal, help!

Coupon-mad

Yep that has what it needs!

jimnastics

Coupon-mad wrote: »

Yep that has what it needs!

Excellent thanks! Just a couple more queries...


I have not used the "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" argument. The examples (e.g. https://forums.moneysavingexpert.com/showpost.php?p=71287626&postcount=2342) I have all found relate to the "keeper" which I am not, so I don't know if it's different with me being the "hirer". Can I just go through and replace "keeper" with "hirer", or should I just leave that out entirely?


And regarding signage, I have just copied and pasted one I found and will need to edit. Here is the sign on entrance to the car park:

https://goo.gl/maps/WPR5haEhzLpriUC97

There are small versions dotted throughout the car park:

https://goo.gl/maps/toQ8knrQ2Vqf8c2u9

Is this an argument worth sticking with?

jimnastics

I have my draft ready to send (I hope...) but would appreciate some thoughts, particularly on point 2. and 4. With point 2, the "no proof of who was the driver" argument, I have simply replaced "keeper" with "hirer" from the common template. Is this ok?



And with point 4. I have argued that they can't prove the car was actually parked for the entire time from entry to exit. There are two drive-through restaurants within the car park, which I thought was a solid argument. However this refers to NtK which I feel like I shouldn't even be bothering with as it's not relevant to me as a hirer considering they didn't even send an NtH, but is it worth putting in just to beef this up?

---

As the hirer/leasee of the above vehicle at the time of the Parking Charge Notice (PCN), I wish to dispute the Parking Charge Notice which Euro Car Parks (ECP) issued against it. I would like to have the Parking Charge Notice cancelled based on the following grounds:

1. Failure to comply with the strict requirements of the Protection of Freedoms Act 2012 (POFA)
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. No evidence of Landowner Authority
4. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
5. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
6. Signage - 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

1. Failure to comply with the strict requirements of the Protection of Freedoms Act 2012 (POFA)

In the case of a Parking Charge Notice (PCN) issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of the POFA 2012 to claim unpaid parking charges from a vehicle's hirer, the creditor must:

1) as per POFA 2012 Schedule 4, paragraph 14(2)(a), the creditor must have given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

Euro Car Parks did not provide me with a “notice to hirer”.

POPLA has promised that my case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and I expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that Euro Car Parks has failed to comply with Schedule 4 of POFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)).

Euro Car Parks did not provide me with copies of any of these documents, (a), (b) or (c).

POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, we are simply exercising our right as hirer to appeal this PCN in exactly the same way as any other vehicle keeper or hirer is entitled to do.


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 hirer appellant, yet no POFA 'hirer 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 hirer without a valid Notice to Hirer.

As the hirer 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 'NTH' was served or not, because the fact remains I am only appealing as the hirer and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer 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. No lawful right exists to pursue unpaid parking charges from myself as hirer of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

I refer to case 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. 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 as opposed to attempting to read the terms and conditions before deciding against parking/entering into a contract and/or queuing to exit the carpark. It should also be noted that at the location in question (Chichester Gate Leisure Park) there are two drive through restaurants on site within the car park. It would be perfectly conceivable that the driver had left their parking space within the alloted time to visit these restaurants. The date of the event – 08/08/2019 – is during the school summer holidays, arguably the busiest perioud of the year for such a location.

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;”

Initial Parking’s NtK simply claims “Location: Chichester Gate Leisure Park”

The NtK separately states “Entry : 08/08/2019 10:04:22” and “Exit: 08/08/2019 at 15:04:52”. 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 Park’s Appeal Reply states “Your vehicle was parked longer than 4 hours.” It is not in the gift of Euro Car Parks to substitute “entry/exit” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.


5. 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 (inserted below) of the vehicle 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 below (but not legibly 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.

(image here)


6. Signage - 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.

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.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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.

Given the above I request that the Parking Charge Notice issued by Euro Car Parks be cancelled.

Yours sincerely,

farnham11

Hi,
We are a business and 3 staff have received a parking notice to pay from the same Euro Carpark. These have not been paid and subsequently we have now received a debt recovery letter for the first notice to pay issued!

The staff we working onsite at a nearby client premise and we minutes over their tickets each time! THey had no idea that a video operation clocked their entrance and exit but equally with the work distraction they hadn't realised the time had over-run either.

We have not acknowledged any of the tickets to accept or challenge.

I don't want to place too much risk on a hefty fine with the fees already doubled!

As a business vehicle that is on HP is this pursuant for payment lawful?

Umkomaas

You’re in the wrong place. You need to read the NEWBIES FAQ sticky, post #4 now you’re at debt collector stage, and if your reading there isn’t clear, start your own new thread, please.

Hijacking of other posters’ threads is not allowed by the forum, because not only is it disrespectful to the OP (shove over, my case needs resolving), it risk confusion and could prove costly to either you, both, or any other random poster who muscles in and wants advice on their particular case. It becomes a total mess.

Personal, bespoke advice if you follow above please.

Coupon-mad

But please NO NEW THREAD ABOUT TEDIOUS DEBT COLLECTOR LETTERS.

By all means ask us if the NEWBIES thread is not clear about how a Fleet Manager appeals a PCN issued to a company car, but it is covered in the sticky thread with an example written by Edna Basher, already.

The NEWBIES thread is found by 2 clicks from any thread. See my signature below.

jimnastics

POPLA appeal won! ECP did not wish to contest the appeal.


Massives thanks to user Sketch for the great appeal they put together here, in particular Point 1 regarding the lack of Notice to Hirer and required documents:

https://forums.moneysavingexpert.com/discussion/5963869/ecp-pcn-hire-lease-car-popla-appeal


For anyone else with a lease vehice where they haven't been sent an NtH and/or required documents, here is your silver bullet:


1. Failure to comply with the strict requirements of the Protection of Freedoms Act 2012 (POFA)

In the case of a Parking Charge Notice (PCN) issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of the POFA 2012 to claim unpaid parking charges from a vehicle's hirer, the creditor must:

1) as per POFA 2012 Schedule 4, paragraph 14(2)(a), the creditor must have given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

Euro Car Parks did not provide us with a “notice to hirer”.

POPLA has promised that our case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and we expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that Euro Car Parks has failed to comply with Schedule 4 of POFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)).

Euro Car Parks did not provide us with copies of any of these documents, (a), (b) or (c).

Further, Euro Car Parks should have issued a “notice to hirer” in full compliance with the requirements of POFA, Schedule 4, Paragraph 14 (5);

Contrary to the requirements of Paragraph 14(5)(a), Euro Car Park's Parking Charge Notice to us did not inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the Notice to Keeper) may be recovered from the hirer;

Contrary to the requirements of Paragraph 14(5)(b), Euro Car Park's Parking Charge Notice to us did not refer the hirer to the information contained in the Notice to Keeper;

Contrary to the requirements of Paragraph 14(5)(c), Euro Car Park's Parking Charge Notice to us did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.

POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, we are simply exercising our right as hirer to appeal this PCN in exactly the same way as any other vehicle keeper or hirer is entitled to do.

Umkomaas

Well done. They all fail with a hire/lease vehicle, even the most administratively efficient, despite the process being clearly laid out in PoFA.

jimnastics

And of course I should have said thanks to all the folks who helped me in this thread