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Euro Car Parks POPLA appeal advice - letter written following NEWBIES guidelines!
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benhan01
Posts: 19 Forumite
Hello!
Really hoping I can get some advice on a letter I'm about to submit to POPLA appeal for a recent parking ticket... I appealed in the first instance to Euro Car Parks but it was rejected, so now I've read lots of advice on the NEWBIES thread online on this forum (thank you so much for that), and have completed the following letter (and attached images on the word doc version that I will submit eventually, but can't get them to upload to this thread).
In a nutshell, I drove in, read the terms and decided it was too expensive and not to park there, this all amounted to around 10 minutes, and I've had a fine for it!!!
Appeal vs. Euro Car Parks
POPLA Verification Code: XXXXXXXXX
Vehicle Registration: XXXXXXXX
I, the registered keeper of this vehicle, received a letter dated 31/12/2018 acting as a notice to the registered keeper. My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 06/01/2020 and rejected via an email dated 10/01/2020. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
1) Grace Period: BPA Code of Practice–non-compliance
2) The entrance signs are inadequately positioned and lit and 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
3) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
4) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
5) No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
6) The ANPR System is Neither Reliable nor Accurate
1) Grace Period: BPA Code of Practice – non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
BPA’s Code of Practice (13.2) states that:
“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
BPA’s Code of Practice (13.4) states that:
“You 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.”
The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
It is therefore argued that the duration of visit in question (which Euro Car Park Ltd claim was 11 minutes 28 seconds) is not an unreasonable grace period, given:
• The lengthiness of Euro Car Park Ltd’s signage (in terms of word count) with a significant amount of text included in an “Important Notice” section (the title “Important Notice” clearly implying it is essential this must be carefully read and understood) in tiny text at the bottom of the sign (see Figure 2).
• The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
• The date and time of visit was a Saturday afternoon in December right before Christmas when the car park was busy, so there were a number of people queuing to read the signage and agree to the terms and conditions.
All factors discussed above serve merely to increase the time taken to:
a) Locate a sign indicating entrance
b) Locate a sign containing the terms and conditions
c) Wait in a queue of other car park users also reading the sign
d) Read the full terms and conditions
e) Decipher the confusing information being presented
f) Decide not to park and therefore not entering into a contract
g) Return to car and safely leave the car park
Just over two years ago (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”
2) The entrance signs are inadequately positioned and lit and 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.
Figure 1 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:
Figure 1: Beavis sign
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 and sparsely 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.
Euro Car Parks’ main car park sign on the Browncross Street – Manchester site (the only one in the car park displaying terms and conditions) is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure 2):
Figure 2: Browncross Street – Manchester – main car park sign close-up
The image in Figure 2 shows a close up of the main car park sign in the same lighting conditions as the date/time for which the PCN has been issued. (N.B. This image was taken whilst standing at ground level looking up from in front of the two payment machines that can be seen obscuring access in Figure 3. The camera was held above head height so as to capture as close an image as possible, therefore it cannot be assumed that this is the view a person would have when standing below the sign. It should be emphasised that, when viewed from ground level, the text is even more difficult to read than it is in Figure 2).
Figure 3 shows a wider angle view of the same main car park sign, giving some context to the size/location of the sign shown in Figure 2. Figure 3 shows clear evidence that:
• The sign is positioned high on a pole, making it difficult to read
• The terms are made even harder to read due to the positioning of car park payment machines making it very difficult to get close to the sign
Figure 3: Browncross Street – Manchester – main car park sign
Figure 2 and Figure 3 clearly show that Euro Car Parks’ signage does not comply with the BPA Code of Practice (18.3), specifically:
“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
The section in red text at the bottom of the sign (see Figure 2) that is apparently an “Important Notice” is in tiny text that is very difficult to read. It cannot be ignored – the wording used clearly states it is important and therefore urges the reader to fully read and understand. Why is something so important so small and illegible? Furthermore, red text on a yellow background is difficult to read.
Areas of this site are unsigned and there are no full terms displayed clearly indicating non-compliance with the BPA Code of Practice (18.3) which states:
“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. 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. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”
Recently (September 2017) a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.
The BPA Code of Practice (Appendix
sets the requirements for entrance signs, specifically: The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead
Figure 4: Entrance to Browncross Street – Manchester car park
The entrance sign to the right of the entrance (see Figure 4 above), from the perspective of a vehicle entering the car park, contains a substantial amount of text. This text is very small – impossible to read whilst in a moving vehicle – and difficult to read in daylight whilst on foot (let alone from a moving vehicle).
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.
In addition, the BPA Code of Practice (18.1) clearly states that:
“A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.”
Bearing this paragraph in mind, there was categorically no contract established between the driver and Euro Car Parks. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated.
Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed.
Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high), particularly from a moving vehicle entering the car park, and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.
3) 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), 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 parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability:
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
4) 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 23
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.
5) 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 versus attempting to read the terms and conditions before deciding against parking/entering into a contract.
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;”
Euro Car Parks’ NtK simply claims “the vehicle was parked at Browncross Street – Manchester.”
The NtK separately states that the vehicle “entered Browncross Street – Manchester at 12:15:38 and departed at 12:27:06”. 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 Parks NtK states “we are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay”. It is not in the gift of Euro Car Parks to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.
By virtue of the nature of an ANPR system recording only entry and exit times, Euro Car Parks are not able to definitively state the period of parking.
I require Euro Car Parks to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.
6) The ANPR System is Neither Reliable nor Accurate
The Notice to Keeper states:
“On 21/12/2019 the vehicle: XXXXXXXX entered Borwncross Street – Manchester, at 12:15:38 and departed at 12:27:06 on 21/12/2019”
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 (10 minutes and 48 seconds apart), it is vital that ECP produces the evidence requested in the previous paragraph.
Really hoping I can get some advice on a letter I'm about to submit to POPLA appeal for a recent parking ticket... I appealed in the first instance to Euro Car Parks but it was rejected, so now I've read lots of advice on the NEWBIES thread online on this forum (thank you so much for that), and have completed the following letter (and attached images on the word doc version that I will submit eventually, but can't get them to upload to this thread).
In a nutshell, I drove in, read the terms and decided it was too expensive and not to park there, this all amounted to around 10 minutes, and I've had a fine for it!!!
Appeal vs. Euro Car Parks
POPLA Verification Code: XXXXXXXXX
Vehicle Registration: XXXXXXXX
I, the registered keeper of this vehicle, received a letter dated 31/12/2018 acting as a notice to the registered keeper. My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 06/01/2020 and rejected via an email dated 10/01/2020. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
1) Grace Period: BPA Code of Practice–non-compliance
2) The entrance signs are inadequately positioned and lit and 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
3) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
4) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
5) No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
6) The ANPR System is Neither Reliable nor Accurate
1) Grace Period: BPA Code of Practice – non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
BPA’s Code of Practice (13.2) states that:
“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
BPA’s Code of Practice (13.4) states that:
“You 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.”
The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
It is therefore argued that the duration of visit in question (which Euro Car Park Ltd claim was 11 minutes 28 seconds) is not an unreasonable grace period, given:
• The lengthiness of Euro Car Park Ltd’s signage (in terms of word count) with a significant amount of text included in an “Important Notice” section (the title “Important Notice” clearly implying it is essential this must be carefully read and understood) in tiny text at the bottom of the sign (see Figure 2).
• The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
• The date and time of visit was a Saturday afternoon in December right before Christmas when the car park was busy, so there were a number of people queuing to read the signage and agree to the terms and conditions.
All factors discussed above serve merely to increase the time taken to:
a) Locate a sign indicating entrance
b) Locate a sign containing the terms and conditions
c) Wait in a queue of other car park users also reading the sign
d) Read the full terms and conditions
e) Decipher the confusing information being presented
f) Decide not to park and therefore not entering into a contract
g) Return to car and safely leave the car park
Just over two years ago (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”
2) The entrance signs are inadequately positioned and lit and 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.
Figure 1 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:
Figure 1: Beavis sign
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 and sparsely 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.
Euro Car Parks’ main car park sign on the Browncross Street – Manchester site (the only one in the car park displaying terms and conditions) is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure 2):
Figure 2: Browncross Street – Manchester – main car park sign close-up
The image in Figure 2 shows a close up of the main car park sign in the same lighting conditions as the date/time for which the PCN has been issued. (N.B. This image was taken whilst standing at ground level looking up from in front of the two payment machines that can be seen obscuring access in Figure 3. The camera was held above head height so as to capture as close an image as possible, therefore it cannot be assumed that this is the view a person would have when standing below the sign. It should be emphasised that, when viewed from ground level, the text is even more difficult to read than it is in Figure 2).
Figure 3 shows a wider angle view of the same main car park sign, giving some context to the size/location of the sign shown in Figure 2. Figure 3 shows clear evidence that:
• The sign is positioned high on a pole, making it difficult to read
• The terms are made even harder to read due to the positioning of car park payment machines making it very difficult to get close to the sign
Figure 3: Browncross Street – Manchester – main car park sign
Figure 2 and Figure 3 clearly show that Euro Car Parks’ signage does not comply with the BPA Code of Practice (18.3), specifically:
“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
The section in red text at the bottom of the sign (see Figure 2) that is apparently an “Important Notice” is in tiny text that is very difficult to read. It cannot be ignored – the wording used clearly states it is important and therefore urges the reader to fully read and understand. Why is something so important so small and illegible? Furthermore, red text on a yellow background is difficult to read.
Areas of this site are unsigned and there are no full terms displayed clearly indicating non-compliance with the BPA Code of Practice (18.3) which states:
“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. 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. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”
Recently (September 2017) a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.
The BPA Code of Practice (Appendix
sets the requirements for entrance signs, specifically: The sign should be placed so that it is readable by drivers without their needing to look away from the road aheadFigure 4: Entrance to Browncross Street – Manchester car park
The entrance sign to the right of the entrance (see Figure 4 above), from the perspective of a vehicle entering the car park, contains a substantial amount of text. This text is very small – impossible to read whilst in a moving vehicle – and difficult to read in daylight whilst on foot (let alone from a moving vehicle).
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.
In addition, the BPA Code of Practice (18.1) clearly states that:
“A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.”
Bearing this paragraph in mind, there was categorically no contract established between the driver and Euro Car Parks. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated.
Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed.
Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high), particularly from a moving vehicle entering the car park, and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.
3) 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), 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 parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability:
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
4) 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 23
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.
5) 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 versus attempting to read the terms and conditions before deciding against parking/entering into a contract.
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;”
Euro Car Parks’ NtK simply claims “the vehicle was parked at Browncross Street – Manchester.”
The NtK separately states that the vehicle “entered Browncross Street – Manchester at 12:15:38 and departed at 12:27:06”. 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 Parks NtK states “we are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay”. It is not in the gift of Euro Car Parks to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.
By virtue of the nature of an ANPR system recording only entry and exit times, Euro Car Parks are not able to definitively state the period of parking.
I require Euro Car Parks to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.
6) The ANPR System is Neither Reliable nor Accurate
The Notice to Keeper states:
“On 21/12/2019 the vehicle: XXXXXXXX entered Borwncross Street – Manchester, at 12:15:38 and departed at 12:27:06 on 21/12/2019”
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 (10 minutes and 48 seconds apart), it is vital that ECP produces the evidence requested in the previous paragraph.
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Comments
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Appalling behaviour! What a waste of your time.
[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]You never know how far you can go until you go too far.0 -
Thank you. I know, I was so shocked when the letter came through and it’s taken me so long doing all this research and putting a draft letter together to appeal it �� I’ll definitely complain to the MP. Do you think the letter I’ve drafted will win an appeal with POPLA? x0
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" ...around 10 minutes,"
You need to clarify this. Please be precise.
How long did the scammers say the vehicle was on site?
Did you appeal as keeper or driver? If as keeper, was the NTK PoFA compliant? If not, then you should include non-PoFA compliant NTK in your appeal.
You should also include, No Standing to issue charges in their own name.
What happened when you complained to the landowner?
Have you complained to your MP yet about this unregulated scam?I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
It was 11 minutes 28 seconds to be exact that they say the vehicle was onsite. I appealed as keeper, and followed the suggested template on first appeal (from the NEWBIE thread on the forum). How do I know if the Notice to Keeper was POFA compliant? I haven't complained to the landowner yet as I'm not sure how to find out who it is. I'm complaining to the MP tomorrow as per the advice above.
Thanks again for help x0 -
So sorry to ask again but the deadline on my appeal runs out soon...how do I know if the Notice to Keeper was POFA compliant? Thanks again x0
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I am currently fighting an ECP invoice for a similar incident at a differing location.
Personally I would not get too hung up about Pofa as there NTK are normally compliant and you have covered the points in your appeal
Though not an expert I would say your appeal looks fine though would check spelling of the location may be should be Browncross St. at point 6
I have just had ECP evidence from POPLA and there attempt to provide Land Owner Authority is shocking. They claim the client is ECA Holdings, one quick search shows that this company is a subsidiary of ECP and the director who signed the form are one in the same and no evidence at all of Land Owner authority or any kind of agreement flowing from such an agreement.
Clearly your entry and exit times fall within the minimum grace periods so really should be a no brainer even for POPLA
Good LuckI Am Charlie0 -
There is a link to the PoFA in the NEWBIES, or use a search engine of your choice to find it.
As above, compare it line by line to see if the timings and wordings comply with the act. If the mandatory PoFA wording is missing then it fails and the keeper isn't liable. It does look like it complies with regards to dates though.
Do include any other point already mentioned about No standing to issue charges in their own name.
Note that PoPLA codes last 32 days.I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Fight_the_good_fight wrote: »I am currently fighting an ECP invoice for a similar incident at a differing location.
Personally I would not get too hung up about Pofa as there NTK are normally compliant and you have covered the points in your appeal
Though not an expert I would say your appeal looks fine though would check spelling of the location may be should be Browncross St. at point 6
I have just had ECP evidence from POPLA and there attempt to provide Land Owner Authority is shocking. They claim the client is ECA Holdings, one quick search shows that this company is a subsidiary of ECP and the director who signed the form are one in the same and no evidence at all of Land Owner authority or any kind of agreement flowing from such an agreement.
Clearly your entry and exit times fall within the minimum grace periods so really should be a no brainer even for POPLA
Good Luck
Would you mind posting a copy of the alleged landowner authority for us to look at and the OP to use, plus your other findings about the signatories?
We've seen this before where VCS had a contract with Excel, who own VCS, and no sign of a signatory from the landowner.I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Thank you everyone for the above. Going to submit my appeal this week so I'll let you know how I get on! Fingers crossed.0
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