Euro Car Parks POPLA Appeal Draft

ampersand

Le_Kirk said:

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!

Further, spyro101, simplify and correct your sentence.
The signage is not a moving object under any circumstances, nor does it drive a vehicle.
We all understand how dealing with these scumpanies can scramble normal clear thinking.  Just keep it simple and accurate, with the help of the templates here.  Your photos are sound evidence.

ampersand

It's a 'less is more' edit that's required:

' I refer to the alleged Parking Charge Notice(ref.) issued to me by Highview Parking Ltd (“Highview”) as a Notice to Hirer of vehicle (reg.no)

I formally challenge the validity of this PCN, as its keeper for the purpose of the relevant definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

You will be familiar with the strict requirements of Schedule 4 of POFA that must be followed, in order for a parking operator to be able to invoke keeper liability for a Parking Charge.

Attached are fully annotated photos which prove Highview’s Notice to Hirer did not comply, especially in relation to Paragraphs 13 and 14 of Schedule 4 in particular.

Given that Highview has failed to comply on these grounds alone(others exist), it cannot cite keeper liability.

I await/expect(you choose) your prompt confirmation within the relevant timescales, as specified under the British Parking Association Ltd Code of Practice.

Thank you for your cooperation.'

spyro101

Hi all,

Thanks for the guidance and advice. I have decided to start again with the POPLA appeal and rewrite it based on the help and advice received.

Please see the revised version, if anybody has chance to give this a review before I submit to POPLA it would be greatly appreciated. Thanks again! (Appeal below)

spyro101

PoPLA Appeal.

I am the hirer of vehicle ******. I am appealing a parking charge from Euro Car Parks on the following points:

1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('PoFA')

In order to rely upon PoFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with PoFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of PoFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper.

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).

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/hirer 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by PoPLA on numerous occasions, that a parking charge cannot be enforced against a hirer without a valid NTH.

As the hirer 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 because the fact remains I am only the hirer and ONLY Schedule 4 of the PoFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the PoFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the PoFA 2012 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 hirer of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

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

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

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

7.3 The written authorisation must also set out:

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

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

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

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

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

spyro101

4. Insufficient and unclear signage in the area the vehicle was parked

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver parked in an area with insufficient indication that parking restrictions existed. As per the attached photos, the vehicle was parked in an area with unclear signage, poorly lit signage in the dark.

Please see the '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, but also because of the lighting conditions during hours of darkness. (see Figure 2)

 

Figure 2 - Close up of the main 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 the view of the 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 the pole and facing away from the entrance, making it difficult to read while entering the carpark.

·       The terms are made even harder to read due to the lighting of the sign and the small text that the conditions of the carpark are displayed in. 

Figure 3 - Car park entrance for a normal driver entering the car park (note the main sign is not visible at all)

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

Figure 4 - The entrance for the car park

The image in Figure 5 shows the normal exit location for a driver and no signage of parking conditions at exit

Images clearly show the lack of adequate signage and also that the entrance signs are very difficult to read when standing still, let alone when driving a vehicle approaching from a 30mph road. 

Figure 5 - The exit for the car park

 

Figure 6 - Entrance/Exit sign

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 again 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.''

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.

5. No Evidence of Period Parked – NtH 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 NtH 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’ NtH simply claims “the vehicle was parked at Matilda Street - Sheffield, Matilda Street, , Sheffield, S1 4QW”

The NtH separately states that the vehicle “entered Matilda 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 hirer liable as a result.

Umkomaas

1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('PoFA')

In order to rely upon PoFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with PoFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of PoFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper.

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).

That will do the job. I expect ECP will withdraw when they see it, saving themselves the £30 POPLA fee. 

spyro101

Hi again, the appeal was submitted to POPLA. ECP have now submitted their response and evidence. I have 7 days to respond with comments before the review. At the begging of ECP's response they have stated that I have not admitted to and have refused to name the driver, but throughout ECP's response they mention that I have admitted to driving the vehicle, which is not the case. It looks like a sort of generic copy and paste statement that they have included, please see it below:

'Please note that NTH has been issued taking into account the “memorandum of understanding with lease companies” as all are aware of the implications and paperwork involved – the NTK was issued and the Hire Company - LEX AUTOLEASE LIMITED 05074-supplied on return the Hirer Details - name/address – contract start date/contract end date - and the NTH was duly issued and upon receipt the driver logged an appeal. The appellant has confirmed that they were driving when contravention occurred and the breach of terms and conditions not adhered to.'

Is it worth highlighting this in the comments before the final submission or should I just wait for it to go to review?

Thanks again

Coupon-mad

That's exactly what you say in your comments.

spyro101

Thanks again for the input! I have submitted a response with the comments outlining the contradiction. Lets see what the decision is from POPLA.

Cheers, enjoy the weekend all!

spyro101

Hello everybody. Great news! The POPLA appeal was successful due to non compliance with POFA by ECP.

Thanks once again for the help all I am really grateful for the assistance with this.