POPLA Appeal, ECP NTH and major keying error

kaylouem

Hi guys, Great forum and very informative! 

I have drafted a POPLA appeal I would like your advice on please.

Driver parked at the Meadows pay and display car park, Chelmsford, (ECP) on keying in registration plate the machine would only accept 2 characters, as soon as the 2nd character was input the machine display jumped to the payment fee step, driver aborted the transaction and tried again, The same thing happened, after 2 characters the machine jumped to the payment step, a 3rd attempt was made and again the same thing happened so with the driver than concluded that reg no was not needed as a ticket had to be displayed in the car anyway. The transaction continued with accepting payment and a ticket and receipt was issued and ticket displayed inside windscreen. 

A month later a NTH was received without the required hire documents, which the lease company did send them, stating driver breached the Ts & Cs of use (as outlined on signage throughout the site!!)  and stated Contravention: No valid pay and display/permit was purchased.

Waited until 21 days elapsed and appealed to ECP using one of Edna Basher's templates for NTH non POFA compliance. I also added a footnote about the payment machine and explained the fault to them.

The appeal was rejected with no mention whatsoever of the POFA non compliance but instead stated that on checking their machine audit reports, no transactions exist for the vehicle reg mark which would suggest a 'major keying error' when purchasing a pay and display ticket.

The driver refused to accept the 14 day £20 offer to pay as they feel out of principle they should not have to pay a charge at all when they already paid for a 2 hour ticket as it was ECP's machine that was at fault.

This is my appeal to POPLA draft.....

POPLA Ref: xxxx

Vehicle Registration: xxxx

 

I, the hirer of the above numbered vehicle, received a Notice To Hirer dated 15th September 2023 from Euro Car Parks (ECP) I submitted an appeal to them on 9th October 2023 but this was subsequently rejected by email letter dated 20th October 2023.

I contend that as the hirer, I am not liable for the alleged parking charge and wish to appeal against it on the following grounds: 

 

1) Notice to Hirer non-compliant with POFA 2012- The Operator (ECP) 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 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 Hirer 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.''

 

cont,,,

kaylouem

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

 

 4. Insufficient and unclear signage/ non-compliant signage under BPA CoP/ no contract with driver

The car park to which this Parking Charge relates is The Meadows, Chelmsford. CM2 6JX

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver entered the car park, the entrance to which had and still has insufficient signage at the entrance. Not all entrance signs are suitably placed to be read from the distance of the driver of an approaching car, especially whilst manoeuvring round a corner immediately after exiting a busy town centre roundabout, immediately arriving at the car park entrance, which is the case at this site. The approach road to the car park entrance is very short and is shared by delivery drivers entering and exiting loading areas. This makes it difficult to stop for any period not least having to disembark the vehicle to read the entrance signs before entry.

See Image 1 supplied taken from a Google Streetview Screenshot. The yellow arrow indicates the routes to approach the entrance and the red arrows indicate the area that delivery and service vehicles use.

You will see in Image 2, taken a couple of days ago at the car park entrance that there are a few different signs which have very bold, clear legible text displaying ‘Parking from £1 and that it is a ‘Pay and Display’ carpark and to ‘Pay at Meter’ none of which display Ts & Cs  but note the white and blue coloured sign is illegible unless you were to disembark the vehicle and stand within a couple of feet in front of it. As already explained above, this is not practical to do and would cause disruption to other road users. It is also worth noting that this sign does not display the Ts & Cs or any charges whatsoever, neither parking session fees nor parking charges.

The BPA Code of Practice (Appendix) sets the requirements for entrance signs.

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.

The signs around the Meadows site are also not visible from a car before parking and leaving the car. The image in Figure 3 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 taken from standing and has been zoomed in and is still difficult to see the small lettering. Even more difficult to read in situ. Due to small lettering it is very hard to read the text which mentions on conditions which a Parking Charge will be issued in case of non-compliance. 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 this car park do not clearly mention the parking charge as it is hidden in small print. This wording is significantly smaller than the main text on the sign.

A similar case relating to signage is 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.''

 

In the Parkingeye Ltd v Beavis case, the Supreme Court Judge concluded that signs must be in ‘large lettering and prominent’ and very clear as to the terms by which a driver will later be bound. 

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.

See Image 4 relating to the 'Beavis case' sign as a comparison to the signs under dispute in this case.

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 Meadows site (the 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.

5. Failure to provide evidence of a ‘Major Keying Error

A parking ticket was purchased for a 2 hour parking session. On attempting to enter the vehicle registration number into the payment machine keypad, only 2 characters were accepted, the machine display subsequently jumped to the ‘card step’ where you are required to select the time/fee. Two more attempts were made to key in the full registration number but each time, after accepting only two characters the display moved onto the time/fee selection. After concluding that the registration number was not required (as a pay and display ticket is what is actually required to be displayed inside the car) the next steps were followed and the fee paid, sale completed and ticket including receipt were issued. The ticket was displayed clearly on the dashboard.

See Image 5 & 6

I the appeal rejection letter, the operator is citing ‘Breach of Terms and Conditions: No valid pay and display/permit was purchased’ and suggests there has been a ‘major keying error’ when purchasing a pay and display ticket/mobile session.

I put it to them that the breach of Ts & Cs was on their part as the machine was at fault as it did not allow the full registration number to be accepted into the terminal. It is their responsibility to maintain the correct working order of their machines if they are to rely on their accuracy when issuing parking charges. If they do not accept their breach, I put them to strict proof that their machine was in full working order and that no other car park user/ ticket purchased was affected in the same way around the time of the parking session: 18:33-19:35 on 18/08/2023.

See Image 7

On re-visiting the site a few days ago, it was noted that brand new digital display ticket payment machines have been fitted since the parking event in question which might suggest that the previous ones were problematic or not fit for purpose. The adage ‘if it’s not broke, don’t fix it’ comes to mind.

 This concludes my appeal.

Cheers guys 

Fruitcake

That looks okay to me, but I would add in your point 5 that it was the driver who had problems entering the VRM.

Did you also complain to the landowner and your MP? 

kaylouem

Great thank you, I will edit that.  I have trawled the internet and come up with nothing, there are 4 carparks with the same name. Two are council owned, i contacted the council car parking department who could not help. I emailed ECP asking them but they have not replied!! I went onto the land registry website but they want £75 fee and I contacted the shops and precinct that back onto the car park but they don't know either. Haven't complained to MP, I will try that. Although from what I hear he's about as much use as a chocolate tea pot!!

Fruitcake

A Land Registry search only costs a few quid, but you don't need to pay for that unless this gets to court, which is unlikely.

The following is often posted by forum regular @Umkomaas: -

SOME IDEAS ON DETERMINING WHO OWNS THE LAND: 

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 (some councils have a spreadsheet on their website)

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 around £3 they should be able to provide definitive detail

8. If you haven't already done so, give us the name of the car park/site/location, we may have seen other cases there. 

If you post the precise location and a link to Google Streetview images, someone might recognise it if it has cropped up here before.

kaylouem

Thanks, I will try some of those. An old Google Street view image from a couple of years ago shows a company called JLL managed the land but my emails to them are not delivered for some reason. They bounce back.
The car park is The Meadows, Springfield road, CM2 6JX but there are 4 car parks very close together of the same name, but 2 are privately owned.
It won't let me post a link to Google Streetview of the location in here.

 

Le_Kirk

It has been reported here that JLL (Jones Lang LaSalle) has been helpful.

Coupon-mad

I'd add here:

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).  Further, the appellant has seen an online record of recent 2023 POPLA decisions and...

...quote from the Assessor in the POPLA Decisions thread last month, that the original NTK sent to the hire/lease company keeper was ALSO non-compliant, because Euro Car Parks omit the following mandatory paragraph 9 words: (quote wording you find in that sticky thread, and name the Assessor if it's shown).

kaylouem

I’ve just looked at the original NTK that ECP sent to the hire company, (no copy was sent to me by ECP)  and it does quote : 

PROTECTION OF EREEDOMS ACT 2012

You are now notified under the paragraph 9(2)b) of schedule 4 of the Protection of Freedoms Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full

You are advisedthat if, after the period of 28 days beginning with the day after that on which the notice is given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address ofthe driver, we have the right to recover any unpaid part of the parkingcharge from you.This Notice is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of that Act. If you do not provide the correct address for service, we wil pursue you for any Parking Charge amount that remains outstanding. Should you identify someone who denies they were the driver, we will pursue you for any Parking Charge amount that remains outstanding.

Is this what you mean? It is actual on the back of the original NTK. 

kaylouem

Coupon-mad said:

I'd add here:

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).  Further, the appellant has seen an online record of recent 2023 POPLA decisions and...

...quote from the Assessor in the POPLA Decisions thread last month, that the original NTK sent to the hire/lease company keeper was ALSO non-compliant, because Euro Car Parks omit the following mandatory paragraph 9 words: (quote wording you find in that sticky thread, and name the Assessor if it's shown).

Sorry forgot to quote and tag you above^^

kaylouem

kaylouem said:

I’ve just looked at the original NTK that ECP sent to the hire company, (no copy was sent to me by ECP)  and it does quote : 

PROTECTION OF EREEDOMS ACT 2012

You are now notified under the paragraph 9(2)b) of schedule 4 of the Protection of Freedoms Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full

You are advised that if, after the period of 28 days beginning with the day after that on which the notice is given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This Notice is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of that Act. If you do not provide the correct address for service, we will pursue you for any Parking Charge amount that remains outstanding. Should you identify someone who denies they were the driver, we will pursue you for any Parking Charge amount that remains outstanding.

Is this what you mean? It is actual on the back of the original NTK. 

Does this mean they can hold the hire company liable if I continue to fight it?