ECP Car park overstay

Edd12

Hi all,

I've received an NTK for overstaying in a Sainsbury's car park one evening when store was closed.

The NTK is the same as this one ECP NTK for overstaying when store was closed — MoneySavingExpert Forum

Submitted template appeal, was rejected. Drafted a POPLA appeal based on the above thread too as well as the POPLA section on the newbies thread. My main point of argument is the fact that the signage is sub-standard and also the fact that the lighting in the car park itself was off when I was there (i.e. is was almost pitch black as it is a big open car park, no barriers or anything)

I thought it were strange when I parked there that there none of the lighting was on so literally none of the signs were even visible. Unfortunately, I have been back on the same day of the week at roughly the same time but the lights were on so I was not able to get a photo of the car park with no lighting.

Will this be an issue? Can't they check that the lighting was off in the car park on the date that my car was apparently parked there?

My current appeal is here:

https://docs.google.com/document/d/e/2PACX-1vRC8NSQPj8lsFMKGxGl24bN-EtyRtMiI2LmQxSAeVGsiEJ7bwTNPa0GYCeQ8bLoQokcBWPdglUddGHg/pub

I left out the ANPR data protection one - is it worth putting in?

Any and all feedback greatly appreciated!

B789

Ask yourself, can ECP prove they were on, on the night of the alleged breach? Then ask the same of POPLA for ECP to prove they were on that night. It is for them to prove that they were, not you that they weren't.

Edd12

Ok I submitted my appeal, fingers crossed.

Edd12

Got their response back and written a 'comment's on it - I've put everything in a gdoc here that anyone can view (no need to sign in). I've not copied all of their evidence pack as most of it was just the paper trail so far.

https://docs.google.com/document/d/1vHpK1DhNNoMKT3R6nXGLbEFSB4jIhICg4SzSaorUp44/edit?usp=drive_link

UncleThomasCobley

Why would you provide close up, flash highlighted photos of their signage?

Edd12

UncleThomasCobley said:

Why would you provide close up, flash highlighted photos of their signage?

I haven't, those are their photos of the signage from their evidence pack

Coupon-mad

It's too blurred to read on my phone.  Just post here what you are going to comment on.

Castle

1)-The photos taken on 23/12/22 were between 18.37 and 19.06 so clearly the store(s) were still open and not when the 10 minute "rule" was in place.

2)-None of the signs mention the opening hours.

3)-The Landowner's agreement is no such thing because:-
a) At no time do "Sainsbury's" confirm that they are the landowner
b) There are 21 companies with "Sainsbury's" in their registered names at Companies House, but none of them are simply called "Sainsbury's".
c) The agreement is not even on letter headed paper-an offence under the Companies Act.

4)-Why has the IPC checked the NTK/NTO?

UncleThomasCobley

Also, non of the signatories to the supposed landowner agreement have a title as to their positions in the company. It could be that bloke that gathers the stranded trollies from the car park, for all you know, who signed that. It's a worthless bit of paper and you must highlight the fact in your WS along with everything else pointed out above.

Edd12

For anyone who couldn't see the doc here is my response:

I've mentioned the fact the the signature on the 'contract' has no information about the person and it appears the 'contract' is not even complete as it refers to other special restrictions etc.

I need to send this either tonight or tomorrow (an exact week since I got the evidence pack).

Dear Assessor,

The evidence and comments provided by ECP appear to be a set of garbled and repeated statements with a number of pictures to apparently show the ‘adequate signage’ within the area. One page 3, ECP state that in my POPLA appeal I confirmed that I was the driver on the day in question which is incorrect. I explicitly state in my appeal that I am appealing as the registered keeper of the vehicle. A large portion of their other evidence does not relate to anything I put in my original appeal

As stated in the ECP response, any ‘ticket’ is issued under the law of trespass and Contract Law but in order for there to be a contract established in the first place, the signage must be adequate enough. On page 7, the map showing the placement of the signs clearly shows that there are locations in the car park one can park without ever even seeing a sign, particularly if one was parked in the bottom half of the car park.

They have provided a set of images of some of the parking signs at the entrance and throughout the car park at different times of the day, page 25 clearly shows that some parts of the car park have no signage at all. Photos on page 24 and 26 that do have signs, the signs themselves are not prominent and do not contain large lettering informing the users of the car park of the terms. The sign on page 27 is a close-up of a sign with prominent text that does not state any terms or any ‘fee’ associated with breaking the terms and does not indicate what signs to look at in order to get the terms. None of the signs state the opening times of the store with respect to the restriction around parking outside of store hours. I’m unclear as to how a driver seeing this sign can enter into any kind of contract with unknown terms and how a driver can be assumed to have read the correct sign to be aware of the terms they have entered.

There are a number of images of the apparent entrance sign (page 28 and 29) - the one on page 28 shows the sign illuminated by what appears to be a torch showing that it is not normally illuminated to this standard as there is no light on or above the sign. Page 29 shows an image of the same sign illuminated by what appears to be a vehicle but what it does not show is the action of a vehicle approaching the sign will only illuminate the sign for a small period of time due to the curvature of the road upon which it is placed (see my original appeal Fig. 3). If the operator assumes that this shows the sign is visible in headlights of a car they neglect the fact that the headlight beam will only be on the sign for a small amount of time as the car goes around the bend and if approaching from the right of the sign (as shown in my original appeal Fig. 3) the headlight beam will not even illuminate the sign before the vehicle passes it.

There are a number of other images from apparent signs in the car park in both lit and unlit portions of the car park but they have not shown whether the signs can be seen when all the lights are off. As the operator has not proven that the car park lighting was working at the time of the apparent breach these images do not prove anything. As I said in my initial appeal, none of the lighting in the car park was working so even if there were signs none of them were lit and could reasonably be seen. None of the photos at night were taken on the date of the apparent breach therefore the operator has not proven that any of the signs were even lit.

There is plenty of existing case law that shows that any existence of a contract relies on adequate signage - both on entrance to the site and throughout. The terms must be sufficiently drawn to the attention of the driver (see PCM Ltd vs BULL 2016 and ParkingEye Ltd vs Barry Beavis 2015). Not only this, but the fairness of a contract must be considered in every case as part of the Consumer Rights Act 2015 - in the Pace Recovery v Lengyel 2017 case the judge stated the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice which ECP has not in this instance.

The ‘contract’ that has been supplied by ECP appears to be two different documents shown by the differing fonts, I suspect it was because the last page with the signatures is photocopied. It also appears that the document is only a small portion of the full contract agreement between the landowner and the operator which undermines their argument that they have landowner authority.

There is no evidence of a boundary map attached to the ‘contract’ signed on in 2018 as the boundary map provided is dated 26/5/2022 and therefore no evidence that Sainsbury’s/the landowner has agreed to this. No confirmation that the signage was installed at all as the ‘boundary map’ provided has no date or signature next to the ‘Signage Installed by’ box. There is no evidence of a definition of services provided by ECP nor is there any specification of special conditions or restrictions regarding services provided by either party although their existence is alluded to in point 3 and 5 of the Authorisation Instructions. There is no explanation of the person who signed for Sainsbury’s in terms of their job title and whether they were authorised by the landowner to sign the legally binding agreement. None of this ‘evidence’ shows that the operator has any landowner authority as required when they do not have proprietary interest in the land required as part of the mandatory requirements of Paragraph 7 of the BPA CoP. If they are not shown here, how can one be sure they exist?

Given the lack of evidence provided by the operator I respectfully ask you to allow this appeal.

Kind regards

Le_Kirk

Not "Kind Regards" but "yours faithfully" if it does need salutations.