Euro Car Parks POPLA Appeal Draft

spyro101

Hello all,

Unfortunately I received a PCN in February this year. The parking ticket purchased did not cover the length of the stay (by 34 minutes) I have tried to appeal via Euro Car Parks appeal process however it was rejected. I am now going to appeal via POPLA. I have read through a few examples appeals. I then used other peoples appeals as well as some details specific to the carpark to make this draft. It would be greatly appreciated if anybody could give me some feedback before submitting. I do have some photos that I can share of the signs and carpark in daylight aswell as at night.

The only thing I am a little confused about arguing is regarding the identifying the driver as I am arguing that I am just the keeper however the car is a company vehicle (with private use) and on lease through a hire company, Im not sure if this makes any difference.

Please see draft below:

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 Matilda Street, Sheffield is inadequate and illegible in a number of ways, not only because of the sheer amount of text that must be read at the entrance (see Figure 2)

 

Figure 2 – Close up of the entrance sign

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, it is very hard to read the text which mentions on conditions which PCN will be issued in case of non-compliance.

 

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 up at entrance, making it impossible to read while entering the carpark in a vehicle.

·       The terms are made even harder to read due to the positioning of car park and the small imprints that the conditions of the carpark are embedded on sign

 

Figure 3 – Car park entrance for a normal driver entering the car park (note the sign is high up away from entrance and not visible at all whilst in a vehicle)

The image in Figure 4 shows a normal exit location for a driver and no signage of parking conditions at exit.

Figure 4 – The exit for the car park

 

Images clearly show the lack of adequate signage and also that the entrance signs are nigh-on invisible to the naked eye when stood still, let alone when driving a vehicle approaching from a 30mph road.

 

The BPA Code of Practice (Appendix)

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 not even visible), nor is it readable and understandable at all times. It is poorly lit and does not 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.

 

It is therefore suggested once again that images attached above serve to reinforce the earlier point made (in relation to Figures 2, 3 & 4) 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 Peel Centre 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 02/06/2016, 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 reviewed so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. The defendant puts 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 appear to be no larger than .40 font size going by this guide:

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

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

 

...and the same chart is reproduced here:

 

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

 

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

 

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

 

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' -

i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

 

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

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

 

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

 

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

 

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

 

So, for this appeal, the defendant puts 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, the defendant requires 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. The defendant submits 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, not visible from drivers or passengers side), invisible after dark (poorly 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.

Continued on next post

spyro101

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 the defendant can confirm that they were, however the defendant is exercising their right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. The defendant is the keeper, however 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 the defendants 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) the defendant has personally not complied with terms in place on the land and show that the defendant is 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 the defendant 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.''

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 the defendant requires that they produce an un-redacted 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 the defendant suggests 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 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 the defendant puts this operator to strict proof of full compliance:

 

7.2         If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

 

7.3         The written authorisation must also set out:

a.  the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b.  any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c.   any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d.  who has the responsibility for putting up and maintaining signs

e.  the definition of the services provided by each party to the agreement.

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

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked 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 Peel Centre, Bracknell”

 

The NtK separately states that the vehicle “entered Matilida Street - Sheffield at 19:20:01 and  departed at 23:54:17”. 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 signs states “we are using cameras to capture images of vehicle number plates and calculate the length of stay 24 hours a day Monday to Sunday including bank holidays”. It is not in the gift of Euro Car Parks to substitute “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.

The defendant requires 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.

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 NtK in question contains two close-up license plate images. The time and date stamp and license plate have been inserted into the underneath (but not part of) the images. In addition, both images do not even show a vehicle, only an inserted image of the license plate and time stamp. Given the vast area that has neither been bounded nor marked as parking restricted, any vehicle passing by can be captured by Euro Carpark APNR. As a result, these images cannot be used as the confirmation of the incident and Euro Car park Ltd claim was unauthorised.

 

I require Euro Carpark Ltd to produce evidence of the original images containing the required date and time stamp and images showing the car is actually parked in the location stated rather than just passing by. Failing to produce such evidence would indicate the Euro Carpark Ltd has been using APNR to engage random license plate collection of all vehicles passing by and send NtK with the aim to extract penalty. Such action is no different from sticking parking tickets to all vehicles passing by.

 

Recent investigation (27 Apr 2018) by BBC) shows that the private parking industry is unregulated and does not have any accountability. Various cases show the industry’s priority is maximising the penalty received from the motorist without due regard to the integrity of the evidence. Private parking operators are financially incentivised not to use the original image as evidence, but putting partial evidence together to generate a case biased towards generating a penalty fee. Based on the fact above, the defendant requires Euro Carpark Ltd to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

Coupon-mad

I'd remove 4 and 5. They won't win at POPLA.

And add a point that you are the hirer and the driver has never been identified.  ECP failed to enclose the necessary documents (blah blah) ... copy any other Notice to Hirer POPLA appeal already written.

B789

No NtH so not PoFA compliant. As the Hirer, there is no obligation to name the driver. ECP can go rotate on a spike and are put to strict proof as to the identity of the driver. Unless you admitted to being the driver in your initial appeal.

Le_Kirk

Images clearly show the lack of adequate signage and also that the entrance signs are nigh-on invisible to the naked eye when stood standing still, let alone when driving a vehicle approaching from a 30mph road.

Correct this horrible grammar!

Umkomaas

You are showing the car park entrance and its sign in the hours of darkness, yet the detailed signage within the car park in broad daylight. If the parking event was at night-time then you should include night-time photos of the detailed signage, showing their daytime inadequate signage was even worse during the hours of darkness. 

The only thing I am a little confused about arguing is regarding the identifying the driver as I am arguing that I am just the keeper however the car is a company vehicle (with private use) and on lease through a hire company, Im not sure if this makes any difference.

Maybe I've missed it, but was the original Notice to Keeper (NtK) sent to the hire company by ECP?  If so, what happened between their receipt and you becoming involved?  Did you receive a Notice to Hirer from ECP after the hire company formally transferred liability to you?  Or did the hire company simply forwarded their NtK to you and ask you to deal with it?

spyro101

Hi all,

Thanks for the feedback, greatly appreciated.

I am guessing that the initial notice to keeper has just been sent directly to me as the lease company used by my employer have not been in contact regarding this.
Also on the notice to keeper is my employers company name, so maybe it came directly to me? 
I can contact the lease company to find out if they have any record of correspondence with ECP if required?

Also in my initial appeal there has been no admission to who was driving the car, although their response to this was that they do not need to identify the driver as they can recover the costs from the keeper if needed.

I do have some images of the sign at night that I can include so I will replace the one in daylight for the one at night.

Thanks again all!

Coupon-mad

their response to this was that they do not need to identify the driver as they can recover the costs from the keeper if needed.

They can't if it's a leased car and they didn't comply with paras 13/14 of Schedule 4, which you will know from reading the company/lease car section of the NEWBIES thread.

I am guessing that the initial notice to keeper has just been sent directly to me.

That's impossible if you are not on the log book.

spyro101

@Coupon-mad

Thanks for that, So as they have served me the NTK rather than the NTH they haven't complied with schedule 4 para 13/14 of POFA?

I have read through those paragraphs but am still a little confused. 

If I adapt and insert the below template provided by Edna Basher and submit this to POPLA it should do the trick?

Thanks again for your time and patience!

''Reference: Parking Charge Notice xxxxxxxxx : Vehicle Registration xxxxxxx

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by Highview Parking Ltd (“Highview”) as a Notice to Hirer. I confirm that as the hirer of this vehicle, I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and I write to formally challenge the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge. There are a number of reasons why Highview’s Notice to Hirer did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Paragraphs 13 and 14 of Schedule 4 in particular.

Given that Highview has forfeited its right to keeper liability, please confirm that you shall now cancel this charge. Alternatively, should you choose to reject my challenge, please provide me with details of the Independent Appeals Service (POPLA), their contact details and a unique POPLA appeal reference so that I may escalate the matter to POPLA.

Thank you for your cooperation and I look forward to receiving your response within the relevant timescales specified under the British Parking Association Ltd Code of Practice.''

B789

Why would you send a request for a POPLA code to POPLA? You are either appealing to the PPC (a BPA member) and expect. POPLA code if they reject your appeal or you are making an appeal to POPLA once you've received a POPLA code from the PPC after your initial appeal was rejected.

So, is this supposed to be your POPLA appeal? If so, re-read it and look at what you have written.

Alternatively, should you choose to reject my challenge, please provide me with details of the Independent Appeals Service (POPLA), their contact details and a unique POPLA appeal reference so that I may escalate the matter to POPLA.

spyro101

@B789
Hi there, thanks for the reply. I would not submit the request for a POPLA code, I just meant should I argue the point that they are not complying with paragraphs 13 and 14. If so Ill adapt that template above (obviously without the request for a POPLA reference) add it into my appeal and send off to POPLA.

Many thanks in advance