PCN Notice ECP POPLA Draft Assistance

Twicethefruit

Hi All,
On 20/11/2019 THE DRIVER stopped inside of an ECP, situated on Wellington Street - Stockport, not knowing the area it seemed a suitable place to pull over and wait to collect a friend who lives in a flat across the road, the driver stayed for 33 minutes. These details are confirmed on the PCN received by THE KEEPER, dated November 2019, as the ANPR Camera's had been in operation - which show cropped licence plate images, somewhat darkened due to the lack of light in the carpark but recognisable still.
The driver recognises they stayed for a lengthy period of time, which included entering the car park, pulling over, contacting the friend, and then waiting - for a longer period than was originally foreseen. The PCN was the generic £60 if paid within 14 days, £100 thereafter. At that time, the carpark was almost empty - it was evening (19:00+) and the driver did not leave the vehicle (the Keeper is aware this is not grounds for an appeal) - but out of principle the £100 charge feels very unreasonable for any business lost/damages cost etc.
The keeper, having read the NEWBIE stickie thread along with some successful appeals is looking for advice on what grounds should be used to achieve a successful appeal. The keeper has appealed the PCN with ECP’s using the template provided on the NEWBIE THREAD – the rejection email was received over the Christmas period and the keeper is looking for advise on grounds for appeal with POPLA.

The keeper is looking for assistance with the justification for overstaying the grace period without payment, other than when they exited the vehicle to read the signage - there were multiple signs with conflicting/confusing information, there is little lighting in the carpark also at that time, the driver was unaware they would receive a penalty for parking as it is not clearly stated anywhere, nothing to say pay before parking etc. additionally, they (foolishly) assumed they would not be there that long and lost track of time, they doubt this excuse would be acceptable. With help from MSE forums the keeper intends to appeal - below is my first draft. Any comments / input, including any additional points I should raise, would be hugely appreciated, many thanks in advance.

Twicethefruit

*Apologies, wouldn't all fit in one post!*

POPLA Verification Code: xxxxxx
Vehicle Registration Number xxxxxx
PCN Reference xxxxxxx
Issued by Euro Car Parks Limited
As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Euro Car Parks issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1. No Evidence of Landowner Authority-the operator is put to strict proof of full compliance with the BPA Code of Practice 2
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
3. The parking session on the Notice to Keeper is not established by the ‘Time Observed’ and ‘Issue Time’ provided. 4
4. The ANPR System is Neither Reliable nor Accurate 4
5. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for. 5
6. 7) 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 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 Code of Practice) 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 Code of Practice 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.

The operator has not shown that the individual who it is pursuing is in fact the driver who was 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. I am the keeper throughout (as I am entitled to be), 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 Parking Eye 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.''
The parking session on the Notice to Keeper is not established by the ‘Time Observed’ and ‘Issue Time’ provided.

The BPA Code of Practice (13.2) states that parking operators "should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park. In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
There is no evidence that Euro Car Parks have upheld the minimum grace periods as set out in the BPA Code of Practice, as the total time in the carpark exceeded their stipulated period by only 13 minutes, a sum of 10 minutes prior to determining whether to park, and 10 minutes after the parking period had ended.
The ANPR System is Neither Reliable nor Accurate
The Euro Car Parks Notice to Keeper (NtK) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.
The Notice to Keeper states:
“On [DATE ]the vehicle: XXXXXXX entered XXXXXXX, at [ENTRY TIME]and departed at [EXIT TIME] on [DATE].”
These times do not equate to any single evidenced period of parking. By Euro Car Parks own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.
Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;
“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”
Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.
I require ECP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.
As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times, it is vital that ECP produces the evidence requested in the previous paragraph.
The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.
The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras. Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. Euro Car Parks’ signs do not comply with these requirements because this car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. The Euro Car Parks’ main sign in the XXXX car park states:
“We are using cameras to capture images of vehicle number plates and calculate the length of stay between entry and exit at all times 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. The only reference to Parking Charge Notices on Euro Car Parks’ sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states (see Figure 2):
“This car park is controlled, failure to comply with the following will result in the issue of a £100 Parking Charge Notice (£60 if paid within 14 days of issue).”
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 because the operator 'fails to identify its commercial intent':
LINK
Misleading omissions:
6.-(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)-
(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 CCTV is in operation for security within the car park.
7) 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

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."

Neither the Notice to Keeper nor appeal rejection from Euro Car Parks contain any photographic or any other evidence in support of Euro Car Parks request for payment.
The image of a sign provided by Euro Car Parks in their rejection note of my appeal does not contain a date and time stamp, or specify the precise location of the sign. 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 when viewed from a vehicle or on foot from below or in poorly lit areas or times of the day. It should be noted with regard to the purported ‘Time observed’ (xx) and ‘Issue Time’ (xx), that the official sunset on Wednesday 27th November 2019 was at 15.57. The image of the sign clearly does not accurately reflect the conditions at the time it is alleged to have been present nor does it state its location in relation to the vehicle in question. The lettering in red is illegible even in bright daylight as depicted in the supplied image. At sunset, tiny red lettering against a yellow background would be impossible to read from a vehicle or on foot from below.
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.
The signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, without suitable lighting, 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.

[Image of initial sign when entering, not well lit, blurry, and high.]
Figure 1: Photograph of signage in the carpark at similar hour to when the offence occurred.
[Additional Sign with different colours and wording]
Figure 2: Additional signage in the carpark.
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 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:
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.

MistyZ

Twicethefruit wrote: »

The keeper is looking for assistance with the justification for overstaying the grace period without payment, other than when they exited the vehicle to read the signage - there were multiple signs with conflicting/confusing information, there is little lighting in the carpark also at that time, the driver was unaware they would receive a penalty for parking as it is not clearly stated anywhere, nothing to say pay before parking etc.

Seems to me the signage issues are your best bet so cover all aspects of signage with specific reference to the exact signs in that car park: poor or nonexistent illumination of signs and / or car park generally, lack of clarity, size of font, crowded font, poor definition of font due to background colour on signs, height or other types of inaccessibility of signs, poor positioning / lack of signs - cover the lot systematically. If it's possible to obtain even more photos in the same light conditions to refer to, that would be ideal.

Sounds like a particularly scrappy car park so with luck the landowner authority may be lacking or inadequate too. Best to include all sections but personally I don't think the Grace Periods section is going to win. Go for it anyway but don't put it in such a prime position - signage needs to be higher up the list.

You have a random '3' and '4' floating around in your headings list and the points themselves are not yet numbered.

Coupon-mad

You need to embed photos taken in the dark, to your document before you submit it. AND never say ''there were multiple signs''!

[STRIKE]there were multiple[/STRIKE] The only signs were sparsely placed and unlit, and even if they could have been read in the dark they had [STRIKE]with[/STRIKE] conflicting/confusing information and no pay & display machines were in view, or anywhere obvious at all.

The above is suggested if this was a PDT machine car park; was it?

On 20/11/2019 THE DRIVER stopped inside of an ECP, situated on Wellington Street - Stockport, not knowing the area it seemed a suitable place to pull over and wait

Excuse my usual rant, use the STREET, never ever a private car park!

https://forums.moneysavingexpert.com/discussion/comment/76687080#Comment_76687080

This is what the street kerbside bays are for, especially at night when there are no restrictions and/or if you use a yellow line as intended, for boarding/alighting.

I would NEVER drive into a private car park to wait for someone at night, not even if it was their own block of flats. The street is there to be stopped on for boarding/alighting and loading, etc., and I am sure Stockport is not full of clearways and red routes!

MistyZ

I think you need to make your signage section your own. Use the generic stuff but really apply it to that particular car park. Use some shorter, pithier, more straightforward sentences than the generic example does.

You want to make the POPLA assessor sit up and take notice so you evaluate the signage in the light of the BPA CoP etc. rather than expecting them to do it. You do do this to a certain extent, but do it even more. I think more space between paragraphs would help too. Refer clearly to very pertinent photos. You want your POPLA appeal to really stand out.

It's great that there are POPLA appeals on the forum that are good to go in many ways but you're going for a gold star here! So customise yours further and show us the draft.

The_Deep

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

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