Euro Car Parks - Matilda Street, Sheffield

applesponge

Hi all

My other half has received a PCN for the alleged offence of 'No valid pay and display / permit was purchased'. The PCN / NTK has been issued by Euro Car Parks, and the car park in question is Matilda Street, Sheffield. 

The NTK notes the parking session was 2 hours 39 mins, with ANPR pictures showing the registration plate (not the whole car) entering and leaving, with time stamps added underneath. The parking session took place in the evening when there is a flat rate charge of £3. An occupant of the car DID pay for the parking session and has a bank statement showing said £3 going out the following day. 


Plan A
I'm aware that plan A is to complain to someone who can get the charge cancelled, however this is an open car park in town and doesn't service a specific supermarket or set of shops. I've tried to find out who the landowner is, but Google and an extensive search of the forum aren't throwing up any results. Does anyone have any other advice about how to find the landowner please?

I have emailed the council asking who pays the domestic rates, however I'm worried I won't hear back before the appeal deadline, which brings me to - 

Plan B
My partner will submit the blue template wording from the newbies thread, along with the bank statement from an occupant of the vehicle showing proof of payment.

Does anyone have advice on how likely this is to lead to a cancellation from ECP? From reading other threads, it seems these companies don't care for proof - they'll happily poo-poo you and send you to POPLA?

If this is the case - 

Plan C
In my quest to find out the landowner of the car park, I ended up on the council planning website where I spotted that ECP don't seem to have planning permission for their ANPR cameras, which I'm hoping will be a useful point should we make it to this stage. As far as I can tell the NTK is compliant so I can't use that argument, but I will utilise as many other suggested points as possible - including signage and the fact it was dark / can't be seen etc.


Does that sound sensible, have I understood the process correctly? It seems like things have changed a little since I last had to deal with a PCN so just want to make sure I'm doing the right things.

And if anyone has answers to my q's above, I would really appreciate them.

Thanks!

Le_Kirk

applesponge said:

Plan A
I'm aware that plan A is to complain to someone who can get the charge cancelled, however this is an open car park in town and doesn't service a specific supermarket or set of shops. I've tried to find out who the landowner is, but Google and an extensive search of the forum aren't throwing up any results. Does anyone have any other advice about how to find the landowner please?

The below advice is regularly posted by @Umkomaas: -

1. Google searches

2. If a retail park, check on any signage which lists the on-site outlets

3. Ask retailers on the site if there is a managing agent

4. Ask retailers on the site to whom do they pay rent

5. Contact the local authority and ask who pays the non-domestic/business rate for the car park

6. Contact the local Valuation Office and ask if they know. They often have a website which might provide the information 

7. Contact The Land Registry and for £3 they will provide definitive detail

D_P_Dance

Have yupu complained to your MP?

applesponge

Le_Kirk said:

applesponge said:

Plan A
I'm aware that plan A is to complain to someone who can get the charge cancelled, however this is an open car park in town and doesn't service a specific supermarket or set of shops. I've tried to find out who the landowner is, but Google and an extensive search of the forum aren't throwing up any results. Does anyone have any other advice about how to find the landowner please?

The below advice is regularly posted by @Umkomaas: -

1. Google searches

2. If a retail park, check on any signage which lists the on-site outlets

3. Ask retailers on the site if there is a managing agent

4. Ask retailers on the site to whom do they pay rent

5. Contact the local authority and ask who pays the non-domestic/business rate for the car park

6. Contact the local Valuation Office and ask if they know. They often have a website which might provide the information 

7. Contact The Land Registry and for £3 they will provide definitive detail

Thank you  

I have tried 1, 2-4 aren't applicable, and I am awaiting a response on 5.

On 6, is the Valuation Office a government agency? My Googling suggests yes. If so, I think I've covered that in emailing earlier today, however there is a phone number on this page that I will try tomorrow.

Call me cheap, but I don't want to pay £3 if I don't have to!

applesponge

I've had a response:

Good morning

Thank you for your enquiry in this matter however we do not divulge the details of ratepayers to third parties.

Kind regards

Business Rates
Finance & Commercial Services
Sheffield City Council

Does anyone have experience with this please? Can I call on something like FOI to get this info from them?

applesponge

Unsurprisingly, ECP refused the initial appeal despite bank statements proving the correct payment had been made.

As such, I've edited another very useful appeal found on this forum to be applicable to my partner's case. Would anyone be able to review for me please? I'm considering adding the bank statements into the POPLA appeal in case it becomes relevant should this ever get to the court stage, is this sensible?

The full appeal document is here: https://docs.google.com/document/d/19TRDLB8FULFDScBm6SwExoO6Sfp1afsa6kP2gAkvdpw/edit# but I will copy and paste in the next few comments!

Thanks in advance  

---

POPLA Verification Code: XXXXXX

Vehicle Registration: XXXXXX

I, the registered keeper of this vehicle, received a letter dated 23/09/2021 acting as a notice to the registered keeper. My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 22/10/2021 and rejected via an email dated 15/11/2021. 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. 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

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

3. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice 

4. No Evidence of Period Parked - NtK does not meet PoFA 2012 requirements 

5. Vehicle Images contained in PCN: BPA Code of Practice – noncompliance  

6. The ANPR System is Neither Reliable nor Accurate  

7. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

8. Driver had paid...

1. 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 Matilda Street 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: Matilda Street - 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 payment machine that can be seen obscuring access to get closer to the sign in Figure 3. The camera was held above head height so as to capture as close an image as possible and has still had to be zoomed in and brightened, in order to come close to any sort of legibility, 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. 

• The sign is lit from above (further research confirmed it is the only sign in the car park that is lit) but this spotlight serves merely to shine into one's eyes as they look almost directly upwards in order to try and read the sign.

Figure 3: Matilda Street - 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 fees (see Figure 2) are confusing and ambiguous, for example, what fee applies at the time of visit (19:04 on a Friday evening)? The Friday to Saturday fee? The Evening fee? “Evening” is defined in tiny text that is illegible (without a torch and magnifying glass) from where a person would be standing, particularly at night time, not helped by the payment machines obscuring access to the sign – once again, not “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 impossible to read without a step ladder, particularly in the dark when you would also need a torch. 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, especially in low light conditions or with artificial light introducing a glare onto the reflective surface of the sign. 

Indeed, in relation to design principles, it is widely known that colour contrast plays a key role in terms of accessibility as it “affects some people’s ability to perceive information (in other words to be able to receive the information visually).” (Government Digital Service, 17 June 2016 https://accessibility.blog.gov.uk/2016/06/17/colour-contrast-why-does-it-matter/). Whilst this web page discusses design principles in relation to web design, the same points are true of print-based materials which would include signage. 

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.”

In 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.

It cannot be reasonably assumed (particularly given this case took place after sunset in a car park without its own lighting or without any signage being adequately lit) that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.

Figure 4: Approach to the car park indicating lighting conditions and lack of visible signage 

Figure 4 shows the approach to the car park in an image taken in lighting conditions that were actually more favourable than as per the occasion for which the PCN has been issued. The car park is located behind the fencing that can be seen on the left. This image clearly shows the lack of adequate signage and lighting on approach to the car park itself, as:

• The one, solitary sign is positioned high on a pole, making it impossible to read when stood still, let alone when driving a vehicle approaching from a 30mph road.

• The sign is hidden behind poorly manicured foliage, rendering it invisible to approaching drivers. At the point at which the foliage ceases to obscure the driver's view, the sign is above what is visible from the windscreen of a car.

• The sign is not directly lit, nor indirectly lit by other lighting within the car park.

The BPA Code of Practice (Appendix B ) sets the requirements for entrance signs. Following further research (on foot, during daylight), it is not disputed that Euro Car Parks entrance sign meets these requirements in terms of wording/layout – in fact it is almost a direct copy of the example the BPA provide. What is disputed are other requirements the BPA sets in Appendix B, specifically: 

1. The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. 

2. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. 

In disputing points 1 and 2 above, the relevant entrance sign in this appeal case is not readable by drivers without their need to look away from the road ahead (it’s barely visible at all, is too high, and is unlit), nor is it readable and understandable at all times. It is not directly lit nor does it benefit from lighting used for the parking area. It may well be made of a retro-reflective material but this is irrelevant in this case as the positioning of the entrance sign is as such that vehicle headlights will never shine on it sufficiently so as to illuminate it. 

To expand upon the latter point, please see Figure 5, which shows the location of the entrance sign diagrammatically.

Figure 5: Position of entrance signs and path of vehicles upon entry 

There are two entrance signs to the right of the entrance (from the perspective of a vehicle entering the car park), signified by the green dot in Figure 5. The top of the two signs (‘Sign 1’ in Figure 6) states that the car park is Pay & Display and refers to terms and conditions. The bottom of the two signs (‘Sign 2’ in Figure 6) 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 after dark). The sign contains a statement about liability in the event of theft from/damage to the vehicle whilst parked in the car park. It is arguably irrelevant to this appeal as it does not contain anything that suggests payment needs to be made or terms and conditions apply. 

The issue with these entrance signs is not compliance in terms of wording/format, more positioning and illumination. Specifically, I will discuss three factors that are key in establishing non-compliance with the BPA CoP (Appendix B ); the height of the sign; the distance of the sign from the approach road.

Figure 6: Height of relevant entrance signs, distance from approach road and illustration of vehicle direction upon entry. 

As explained in Figure 6 above, the measurement from the ground to the bottom of the relevant entrance sign (Sign 1) is 230cm. The measurement from the ground to the top of Sign 1 is 320cm. The blue ‘P’ (indicating parking) and the text “Pay & Display” is included in the upper third of this sign, 290cm-320cm from the ground. 

The sign is approximately one car length distance from the point at which a vehicle would begin turning into the car park from the 30mph approach road (see Figure 6 above). 

It is important at this point to reiterate that vehicles approaching/entering the car park do so from a 30mph one-way street, as indicated in Figures 7 and 8. When discussing entrance signs, the BPA CoP (Appendix B ) suggests a typical approach speed of 15mph to enter a car park by immediately turning off a 30mph road. 

If we look at Figure 5 above, the blue arrows (upper car park area) and purple arrows (lower car park area) demonstrate the path a vehicle takes upon entry to the car park depending on which part of the car park the driver opts to use. Figure 5 clearly illustrates that vehicle headlights would never be shining in the direction of the relevant entrance sign in order to illuminate it and therefore enable the driver to A) see it and B ) stand a chance of reading it. Figure 6 provides a front view also showing the two paths (using the same blue and purple arrows to indicate the same two paths) a vehicle would take upon entry to the car park.

Taking Figures 7 and 8 into account, it is clear that the entrance sign to the Matilda Street car park is wholly inadequate. In order for the vehicle lights to shine on the entrance sign the vehicle would have to make an unnatural turn of over 90 degrees, within less than 5 metres, at a speed of around 15mph (using BPA CoP suggested approach speeds). This is impossible. 

Even if this manoeuvre was somehow performed, by the time the vehicle has turned to face directly towards the sign, it would be way too close for its headlights to illuminate a sign positioned 2.3m from the ground - unless the car had headlights and a driver's seat on its roof.

Performing some simple calculations seeks only to reinforce the point that the entrance signs are non-compliant and invisible to a driver approaching in the dark. Take the length of the vehicle identified on the NtK, a Mini Cooper (3821mm) and the BPA’s suggested approach speed of 15mph. With an entrance sign positioned approximately one car length from the approach road as is the case here, travelling at 15mph the vehicle would be past the entrance sign in less than three quarters of a second (0.75 seconds).

Moving on from the non-compliant entrance signs, I wish to share one further image that clearly illustrates the inadequate signage at the Matilda Street car park.

Figure 7: Lack of visible signage from where vehicle was situated

Figure 8: Lack of visible signage from where vehicle was situated

Figure 9: Lack of visible signage from where vehicle was situated

applesponge

Figures 7, 8, and 9 were taken in the same lighting conditions as per the occasion for which the PCN has been issued. This provides clear evidence as to the lack of legible or even visible signage from where the vehicle was situated. 

It is therefore suggested once again that Figures 5, 6, 7, 8, and 9 serve to reinforce the earlier point made (in relation to Figures 2 and 3) regarding non-compliance 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.” 

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, the signs in the Matilda Street car park do not clearly mention the parking charge which is hidden in small print (and does not feature at all on all but one of the signs within the car park site). Large 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 02/06/16, 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 Euro Car Parks 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:

https://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

https://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

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

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. 

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and, consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat (not stock examples of 'the sign' in isolation/close-up), in the same lighting conditions. 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 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, not big enough, not visible from drivers side, hidden by unmaintained foliage), invisible after dark (not lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle entering the car park from a 30mph road), 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.

Finally, with regards to the height of the signs in question - particularly the entrance sign signified by the green dot in Figure 5 - the UK Traffic Signs Manual states that:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/771873/traffic-signs-manual-chapter-1.pdf 

5.4.1: “Signs should be mounted such that the lower edge of the sign is generally between 900 mm and 1500 mm above the highest point of the adjacent carriageway. Signs mounted at the lower end of this range benefit from receiving the most illumination from vehicle headlamps”

5.2.9: “It is essential that road users have an unobstructed view of traffic signs [...] It is important, therefore, that sight lines are maintained so that vegetation (including seasonal growth), subsequent building development and other features such as shop signs and awnings do not obscure traffic signs.”

On 5.4.1, it is highlighted that signs mounted with the lower edge in the region of 1 metre benefit from the most illumination from vehicle headlamps. The relevant Sign 1 (Figure 6) is mounted more than 1 metre above this recommendation at 2.3 metres from the ground. It therefore becomes clear that the more important of the two signs, which is the highest of the two in Figure 6 (green dot in Figure 5), is never going to be illuminated by a standard height vehicle.

On 5.2.9, it is stressed that signage should be visible with an “unobstructed” view, and specifically calls out that vegetation should not obscure signs. As seen in Figure 4, there is a large tree which significantly obstructs the view of motorists driving up the one-way road towards the car park entrance. By the time vehicles pass under the tree, they are too close to the signs on the mounted pole to possibly illuminate Sign 1 (again, at 2300mm above the road) to stand a chance of reading, or even noticing, them. Please note that this pole does not benefit from direct lighting (Figure 10), so the inability for car headlights to illuminate either of the signs (specifically Sign 1, the highest but most relevant) becomes all the more problematic.

Figure 10: Lack of direct lighting on the entrance sign at Matilda Street car park

applesponge

2. 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.''

applesponge

3. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). 

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. 

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (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

applesponge

4. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked 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 [enter location].” 

The NtK separately states that the vehicle “entered [location] at [entry time] and departed at [exit time]”. 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.

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5. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all). 

The time and date stamp has been inserted into the letter underneath (but not part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.