POPLA Appeal, ECP NTH and major keying error

kaylouem

 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 Figure 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 figure 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 Figure 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

The driver purchased a parking ticket for a 2 hour parking session, the driver parked for  just over an hour to dine in a local restaurant. The driver attempted to enter the full 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 by the driver 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, the driver paid the fee, the sale completed and ticket including receipt were issued.  See Figures 5 & 6

The driver displayed the ticket clearly on the dashboard.

 In 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 but they have failed to evidence that the machine was working fully.

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.

POPLA is reminded that you are an evidence-based appeals service ONLY, which requires omissions in evidence to be noticed.

As they produced card payment evidence, (Figure 7) it would have been easy for ECP to produce a similar redacted list of payments made at the machine by other drivers around the same time, but they chose not to.

 

I have requested a data printout of the machine but ECP have stated that in order to supply this, they are treating it as an SAR and have requested photo ID and a copy of the V5C which I do not have as it is a hire vehicle. There is no requirement in the ICO guidelines that stipulates photo ID is required but this:

If you are not sure who the requester is who they say they are, you must check this quickly. You shouldn’t ask for formal ID unless it’s necessary and proportionate.. Instead you could ask questions that only they would know, about reference numbers or appointment details for example. There’s little point insisting on photo ID if you don’t know what the requester looks like- it should be proportionate.

The request is for data relating to the vehicle not a person so they do not need personal ID such as photo ID. I sent them a copy of the lease agreement, a copy of the Notice to Hirer and a redacted copy of my credit card statement but they will not accept it as proof of ID as it is not in keeping with the ICO guidance. I feel they are putting unnecessary obstacles in my way. I did not and don’t have to send them photo ID, that is confidential information that I am not comfortable sending to a company I have very little trust in, despite it not being a mandatory required document in this case.

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. See Image 8

The operator has failed to satisfy me, or POPLA, that the PCN was properly issued. I therefore request that POPLA uphold my appeal and cancel this PCN

This concludes my appeal.

Images relating below, including  Notice to Hirer and subsequent ECP Rejection Letter….

Coupon-mad

Looks fine.  This will win.

kaylouem

Coupon-mad said:

Looks fine.  This will win.

Thanks, I will send now and keep you all updated 

KeithP

I would like to suggest that the first few words of your opening sentence would be better as...

As the hirer of the above numbered vehicle I received a Notice...

kaylouem

Hi guys, I have received an update from POPLA as ECP have provided their evidence pack.
The driver's original issue with them is that their ticket payment machine was faulty as it did not allow the driver to input the full VRM, it would only accept 2 characters, despite trying 3 separate times, we asked them to provide evidence that their machine was working correctly and they have provided a printout of the data around the time of the parking session in question. the driver is amazed that there are no other tickets affected in the same way. Although the printout cannot show the full VRMs of the other vehicles due to privacy laws, it still shows more than 2 characters for each one! The driver cannot explain or prove that the machine was at fault with this evidence presented, I am so frustrated. Could it be that ECP have merged data from a different machine on site with the transaction data of the driver on this occasion? Surely not as this would be fraudulent. I am unable to prove the driver's full compliance and ECP's faulty machine!! Not sure what can be further added to that point.

ECP are stating the original NTK was compliant as they have included the POFA 2012 paragraph required, what do you guys think?
The NTH is non compliant as ECP failed to provide the required documents with it.

They have provided photos of signs which they say are compliant and clear, most of them bar one are signs in other areas of the car park. The site is split into 3 separate areas covered by 2 different addresses. And only one sign near the ticket machine is in the particular car park area in question. You would have to walk to the other 2 sections of the car park to see those, which entails walking through a barrier to one area and under a bridge to the other. This is surely insufficient signage? Shall I argue that point?

They have also sent a copy of the land owner agreement, is there anything in there that I can use to argue?

Sorry for all the questions but this is giving me such anxiety, I am finding it so difficult to study and familiarise myself with all the ammunition needed to fight this appeal successfully. I have until Friday to reply to POPLA.

I really appreciate all your help, I have linked the ECP evidence pack from DROPBOX below.
https://www.dropbox.com/scl/fi/effrj8lwo42wyupzwx03k/ECP-Evidence.pdf?rlkey=667rutznbjn0ffzuj11c4fbxo&dl=0

KeithP

kaylouem said:

The NTH is non compliant as ECP failed to provide the required documents with it.

I agree with you. That is your winning point.

I've just looked through ECP's evidence pack and cannot see anywhere that they have mentioned that they sent the keeper the necessary documents specified in paras 13 and 14 of POFA.

That is surely a certain failure point.
The opening point in your PoPLA appeal included...

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.
   <snip the rest>

ECP does not appear to have made any attempt to challenge your assertion.
You must point that out to PoPLA and insist that the PCN be cancelled.

Coupon-mad

The NTH is non compliant because ECP failed to provide the required documents with it. ECP's evidence pack fails to demonstrate to POPLA that they sent the keeper the necessary documents specified in paras 13 and 14 of POFA.

That is ALL you need to say as comments.

1505grandad

Might be worth pointing out they are using/quoting from a CoP not relevant to the parking event  -  i.e. they say para 18 of CoP is re signs  -  in the version 8 it is para 19.

also the grace/consideration is wrong  -  they state:-

"According to BPA Code of Practise 13.4–car park operators should allow the driver a reasonable period to leave the private car park after the parking contract  has ended; before enforcement action is taken. If the location is one where parking is normally  permitted; the grace period at the end of the parking period should be a minimum of 10 minutes."

Version 8 states:-

"13.4 Unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period in spaces designated for specific users e.g Blue Badge holders, pick up/drop off or where parking is prohibited such as hatched areas in front of emergency exits, or on entry and exit ramps etc."

But agree the NtH points should be enough.

kaylouem

KeithP said:

kaylouem said:

The NTH is non compliant as ECP failed to provide the required documents with it.

I agree with you. That is your winning point.

I've just looked through ECP's evidence pack and cannot see anywhere that they have mentioned that they sent the keeper the necessary documents specified in paras 13 and 14 of POFA.

That is surely a certain failure point.
The opening point in your PoPLA appeal included...

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.
   <snip the rest>

ECP does not appear to have made any attempt to challenge your assertion.
You must point that out to PoPLA and insist that the PCN be cancelled.

Thank you so much. I will get onto it later this evening.

kaylouem

Coupon-mad said:

The NTH is non compliant because ECP failed to provide the required documents with it. ECP's evidence pack fails to demonstrate to POPLA that they sent the keeper the necessary documents specified in paras 13 and 14 of POFA.

That is ALL you need to say as comments.

Thank you, feeling a bit more confident now, this is soooo draining. I know it's not a criminal case but still very stressful all the same! I have not slept properly for a fortnight