Euro car parks PCN ANPR

C3po

Hi Keith, thanks for your reply
ok I think I managed to upload it, this is the link

https://ibb.co/d4pgvTk
can you check if it works also will this photo help my appeal

this is the actual photo ECP sent me as of Parking charge notice

KeithP

Yes, left hand sign certainly helps you.
The £100 Parking Charge wording is far from being clear.

Compare that with the Beavis Sign. Google Beavis Sign image and see how conspicuous the parking charge amount is there.

C3po

Thanks Keith, I have just checked google for the Beavis sign image, and it is clear, so how would I refrase my popla appeal

KeithP

C3po wrote: »

Thanks Keith, I have just checked google for the Beavis sign image, and it is clear, so how would I refrase my popla appeal

Posts #17 and #18 above have already addressed that.

C3po

I think I have totally messed up this popla appeal about the signage as in the photos you can see that both signs are next to each other as the photo is what has been sent from ECP

C3po

Hi Coupon - mad i have taking your advice and revised my Popla, can you check that this is correct and ready to send to Popla appeal please.


On xxxx I received a Parking Charge Notice from!Euro!Car!Parks alleging a parking offence on xxxx, and demanding a charge to be paid. My appeal to the Operator,!Euro!Car!Parks, was rejected on xxxx. I am the registered keeper of vehicle registration xxxx and I contend that I am not liable for the alleged parking charge.!

In the appeal to Euro Car Parks it was specifically stated to them that both machines on the site was not working at the time. A note was placed on the dashboard of the car to make the patrolling attendants of the car park aware that both machines was out of order and there was an intention to pay. However, there was no patrolling attendant on site.
Euro Car Parks also stated that “there is also the option to use the Pay by Phone option on site”, however i told ECP that i could not download the app due to my data not working

Therefore I wish to appeal against the charge on the following grounds:

1) A compliant Notice to Keeper was never served - no Keeper Liability can apply
2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
3) Proof that the machine was in-fact working at the alleged time.
4) ANPR signs do not comply with BPA Code of Practice
5) Insufficient signage
6) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
7) No legitimate interest in enforcing a charge

1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.
This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.
The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) the conditions specified in paragraphs 5, 6*, 9, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)—!
(b) has given a notice to keeper in accordance with paragraph 9, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 14 days beginning with the day after the parking event. As this operator has evidently failed to serve a POFA compliant NTK, in accordance with paragraph 9 they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory documents with paragraph 9 wording and prescripted warning about ‘keeper liability’ were not properly given

Further to this the NTK misleads a keeper regarding the 'date of issue' and therefore the NTK was again, not properly given.

2) The operator has not shown that the individual who it is pursuing is in fact 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by!POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by!POPLA!on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.!

The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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 – they will fail to show I can be liable because the driver was not me.

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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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) Both machines out of order.

Contrary to EuroCarParks rejection of my original appeal, I put it to EuroCarParks to provide strict proof that both of their machines was working at the time and must be confirmed and checked by a witness employee that it relates to that!car!park, on that day.

4) ANPR signs do not comply with BPA Code of Practice

The Operator’s signage does not meet the requirements as set down in the British Parking Association’s Code of Practice relating to signage. The BPA states the following:

21.1) You may use ANPR camera technology to manage, control and enforce parking in private!car!parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the!car!park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

Therefore the cameras must be used in a transparent manner; in an ANPR!car!park, if you were to park for 2 hours and take a perfectly reasonable 10 minutes to find a space at busy times, and a perfectly normal 5 minutes to exit the!car!park past pedestrians and waiting for other cars queuing and manoeuvring, you might find that parking operators using unfair business practices, somehow put out the lie that a driver has stayed 2 hours and 15 minutes. In order to meet the transparency requirement, the signage should state that the timing is from the point of entry and exit to the!car!park. Without this, how is a motorist to reasonably know this? There is no mention of this on the sign.

Equally, the!Euro!Car!Parks signage does not comply with the BPA’s requirement to tell drivers what they are using the data for that the ANPR cameras are capturing. It simply states that
“We are using cameras to capture images of vehicle number plates and calculate the length of stay 24 hours a day Monday to Sunday including Bank holidays”

Specifically missing from this sentence is the vital information that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices

5) 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.

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:

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, 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. 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:

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

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.

Euro!Car!Parks signage pay by phone option with the details are on a separate sign which is not above or next to the ticket machine and is instead stuck on a lamp post . This option needs to be made clearer by placing the sign next to the machine.

6) 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 (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. 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

7) No legitimate interest in enforcing a charge
Contrary to the Beavis case, Miller Street is a pay!car!park; in the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguished it by reasoning that in Beavis the charge was justifiable as it was their only income, whereas in a paid!car!park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty. A key point from the Beavis case was that the charge was necessary to deter overstaying; if penalties were not issued then the!car!park would be unfairly used. So in this case the opposite would apply; as Miller Street is a paid!car!park as per ParkingEye Vs Cargius there is no legitimate interest, and any charge is deemed an unenforceable penalty, particularly as payment was attempted repeatedly without success and every reasonable care was taken to rectify this situation.

Based upon the above-detailed representations, I respectfully request that POPLA confirms that ECP has no valid claim against me and that its PCN should be cancelled and credited in full.


Your Faithfully

KeithP

C3po wrote: »

I think I have totally messed up this popla appeal about the signage as in the photos you can see that both signs are next to each other as the photo is what has been sent from ECP

No, in the image you showed us, https://ibb.co/d4pgvTk, those two signs are not sited next to each other. They have combined two photographs into one image - you can see that the background is discontinuous.

Fruitcake

KeithP wrote: »

No, in the image you showed us, https://ibb.co/d4pgvTk, those two signs are not sited next to each other. They have combined two photographs into one image - you can see that the background is discontinuous.

Those images weren't taken on the same day either by the look of the sky. The site number and location number are different so it could be averred that they are in different car parks.

OP, you have revealed the driver's identity where you say who told ECP that someone could not download the app due to their data not working. That blows point 1 out of the water.

Point 5 should be Inadequate, not Insufficient signage. You will need to embed the images for the signage, not include links. That way the assessor is forced to look at them.

You need to check for spelling and grammar errors such as the spurious exclamation marks.

C3po

Hi Fruitcake I have copied this template from this forum as I thought it was useful for my appeal, I am trying to search different threads associated with my appeal but having not much luck.

Coupon-mad

When you copy a template example you obviously tweak it and adapt it to suit.