ECP Eurocarparks BP Gatwick South POPLA appeal

kyf20

Dear all,

I have been searching this site and composing and tweaking a POPLA appeal for days now and would appreciate some feedback please. I am currently on day 29 following the ECP rejection letter and am aware I only have a couple of days or so left to submit my appeal. I have also tried contacting the BP store directly and while I got a reply initially asking for further evidence that I responded to, I haven't got any further replies for over a week now, and I am running out of time.

-Driver overstayed at BP Connect Gatwick South by 10 mins.
-Driver did not see the signs so did not realise it was a 30 min maximum stay.

This is my draft so far. Any advice or feedback would be greatly appreciated.
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POPLA Verification Code: xxx
Euro Car Parks PCN Number: xxx
Re: Appeal against Euro Car Parks Parking Charge Notice

I am the registered keeper of vehicle xxx and I am writing to appeal the Parking Charge Notice (PCN) issued by Euro Car Parks as notified in the letter dated xxx at xxx. Despite my initial appeal being rejected on xxx, I maintain that I am not liable for the charge based on the following detailed grounds, which demonstrate that the charge is invalid, unfair, and unenforceable.

1.     No grace period was granted to the driver, as required by the BPA Code of Practice sections 13.2 and 13.4.

2.     The car park's signs are neither sufficiently prominent nor clear, lacking proper indication of the parking charge sum.

3.     The operator has not provided proof of Landowner Authority, a necessary compliance with the BPA Code of Practice.

1. No grace period was granted to the driver, as required by the BPA Code of Practice sections 13.2 and 13.4, which mandate a minimum 10-minute grace period both to decide on staying and after the parking period ends.

I am contesting the mentioned 10-minute overstay charge, as it falls within the reasonable grace period outlined by the BPA Code of Practice, making the charge non-compliant with the code.

The parking session on the Notice to Keeper is not established by the ‘Entry Time’ and ‘Exit Time’ provided, since the photos do not show where the vehicle is in relation to the car park boundary, and for how long the vehicle remained there. 

The ‘Time in Car Park’ is listed as 0 hr 40 min, a 10 minute overstay. This overstay is within the BPA Code of practice (13.2) which states that parking operators should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.

This stance is supported by section 30.2 of the code concerning ANPR sites, which dictates a minimum 10-minute grace period post the parking event before any enforcement action can be taken. Moreover, Kelvin Reynolds from the BPA emphasizes that the time allocated for drivers to read the signs and decide to adhere to the parking terms should be flexible, considering factors like disabilities which might necessitate more time.

Historically, the Professional Development & Standards Board agreed to adjust clause 13.4 in the BPA Code of Practice to denote an 11-minute grace period, in alignment with DfT guidelines, endorsing a unified standard and acknowledging that any duration less than 10 minutes (like the case in point) is reasonable.

Given the BPA acknowledges a minimum 10-minute grace period for exiting a car park, it logically extends to the time required to enter the car park, identify and comprehend the terms and conditions, and then exit the premises post the stay.

Therefore, the 10-minute overstay claimed by Euro Car Parks is also unreasonable due to:

a) Insufficient signage in the car park, violating BPA Code of Practice 18.3, which naturally prolongs the time needed to find and understand the signs before agreeing to a contract.

b) The inadequacy of sign visibility from both the entrance and parking spots, and their illegibility without leaving the vehicle, as evidenced by the attached pictures.

2. The 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.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £100, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

>>INSERT PHOTO<<

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 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.

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, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). 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.

>>INSERT PHOTO<<

Figure 1: Close up of the parking sign

>>INSERT PHOTO<<

Figure 2: The BP garage with the yellow parking sign on the left underneath another white sign.

Figure 1 above shows a close up of the main car park sign. Figure 2 shows the sign is by a double yellow line. It would be impossible for the driver to stop and read the sign. 

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, 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 I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator 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 seem to be no larger than .40 font size going by this guide:

>>>INSERT LINK<<<

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

>>>INSERT LINK<<<

''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:

>>>INSERT LINK<<<

''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:

>>>INSERT LINK<<<

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, I put 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, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit 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.

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.

(Cont'd below)

kyf20

(Cont'd from above)

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.

Therefore it is respectfully requested that this Notice to Keeper request appeal be upheld on every point.

 

Yours sincerely,

LDast

You've left out the winning point that you, the keeper, cannot be liable as the location is not relevant land. The location is within the Gatwick airport boundary and is subject to statutory control (airport byelaws).

kyf20

LDast said:

You've left out the winning point that you, the keeper, cannot be liable as the location is not relevant land. The location is within the Gatwick airport boundary and is subject to statutory control (airport byelaws).

Thanks for this - do you know if there is a template with the correct wording I could use please?

Coupon-mad

Bin that long appeal.

1. complain to bp using the contact shown in the Successful complaints about PPCs thread. Somebody posted how to get bp to step in only the other day. 

2. If you have to do POPLA (in March, if your complaint to bp customer service fails) why not just copy the appeal words from the Heathrow Gatwick drop off group thread?

kyf20

Coupon-mad said:

Bin that long appeal.

1. complain to bp using the contact shown in the Successful complaints about PPCs thread. Somebody posted how to get bp to step in only the other day. 

2. If you have to do POPLA (in March, if your complaint to bp customer service fails) why not just copy the appeal words from the Heathrow Gatwick drop off group thread?

Thank you! I don’t have until March to log an appeal with POPLA though - my initial appeal to ECP was rejected on Jan 29th so I’m currently on day 30 post rejection. 

LDast

With an appeal rejection date of 29th January, your POPLA code will be valid until 3rd March.

Coupon-mad

But the complaint to bp customer help could work by tomorrow!

kyf20

Coupon-mad said:

But the complaint to bp customer help could work by tomorrow!

Thanks @Coupon-mad. That is the BP contact I have been chasing up for over a week now - while I got a reply from them initially asking for more details for them to look into it, I haven't heard from them since then (over a week ago now) despite numerous emails chasing them up.

I'll look into option 2! 

kyf20

Coupon-mad said:

Bin that long appeal.

1. complain to bp using the contact shown in the Successful complaints about PPCs thread. Somebody posted how to get bp to step in only the other day. 

2. If you have to do POPLA (in March, if your complaint to bp customer service fails) why not just copy the appeal words from the Heathrow Gatwick drop off group thread?

@Coupon-mad Would troublemaker22’s template apply to my case since the BP Connect parking monitored by ECP isn’t part of the Gatwick drop off zone? TIA

Fruitcake

As long as the location of the alleged event is covered by airport bylaws, no keeper liability should be your first point. 
Just adapt any Gatport Airwick winning PoPLA appeal from the PoPLA decisions thread or the Heathrow Gatwick group thread.