C.U.P Enforcement POPLA Appeal

Wade_Barrett

Hey everyone I hope you're all doing great.

I went to Euro Car Parts in Harold Wood to pick up a car battery. The car was having electrical issues and it was stuck in gear when I arrived so I just pulled up in the safest place I could. Went in, picked up the battery and left. To be honest I've been to this Euro Car Parts multiple times and never really parked in a bay, people just park anywhere they can without blocking anyone because it's so busy.

Surprisingly got a PCN from C.U.P enforcement for not being 'Parked on or within a no parking area'. I researched the forum and contacted the retailer however Euro Car Parts declined to help on both occasions I reached out. I then appealed to C.U.P Enforcement on the grounds of the signage and also mentioned the car's faults including a readout of the car's OBD scan, being sure to not state who the driver was. Of course C.U.P rejected the appeal and I'm now doing my POPLA appeal and just wanted to make sure I haven't missed anything out.

I went back to the location today to take photos of the signs, of which there are hardly any. I have attached photos. Would really appreciate any help checking over the POPLA appeal before I submit it. Thank You
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Dear POPLA Adjudicator,

 

I am the registered keeper of vehicle [XXXXXXX]. And I am appealing a parking charge from CUP Enforcement.

I am appealing on the following points:

1. The signs at this site are not prominent, clear or legible from all parking spaces and there is insufficient notice of the Terms and Conditions

2. NTK does not meet POFA 2012 requirements

3. Evidence of Landowner Authority

4. Forbidding Signage

5. Breach of Consumer Contract Regulations 2013 and Ofcom regulations

6. The vehicle suffered a fault for which a purchase was made from Euro Car Parts

1. The signs at this site are not prominent, clear or legible from all parking spaces and there is insufficient notice of the Terms and Conditions

 

Within POFA 2012 it discusses ‘adequate notice’, this is to make the driver aware of the parking charge. POFA defines ‘adequate notice’ as such:

 

“(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.”

The signage is insufficient, especially given that the font size of the “£100” is miniscule, and of almost if not the same size as the rest of the lettering on the signage. I have considered this against the requirements of BPA Code of Practice Section 18, and found them non compliant. There was no contract or agreement on the ‘parking charge’ at all. It is noted that the driver did not have a fair opportunity to read about any terms involving this huge sum.

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 a link to the ‘beavis case’ signage to serve as a comparison.

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking+sign_001.jpg

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 that specific car park in the Beavis case solely, a contract and 'agreement on the charge' existed.

In our case we have unremarkable signage, and they are not immediately clear or obvious as parking terms. The wording leaves much to be desired and is mostly illegible, 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. Considering this was an ANPR posted NTK with no ‘notice to driver’ left on the windscreen.

'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. Areas of the site are unsigned, and in this particular case the signage shown in the photo was on top of a garage, and it is assumed that it is only for that particular place in front of the garage. The vehicle was parked not in front of the garage, but adjacent to it, and in no way could be said to have been in front of or obstructing the garage. If we are to assume the signage was meant for that part only. As stated before the boundaries are not made clear.

Thus far it seems the ‘terms’ are displayed inadequately, and these signs would not be clearly visible from a parking space. I believe this case is not too dissimilar to POPLA decision 5960956830 on 2/6/2016 where the assessor Rochelle Merrit states:

“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.”

I would estimate the letters seem to be no larger than .39 font size going by this guide:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

This size is about half an inch, and when printed it is not as legible as it may be on a computer screen. No doubt the letters would appear smaller once printed and then mounted high onto a wall.

I would like to bring your attention to Lord Denning's Red Hand Rule:
“In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.”

Therefore the charge being out of all proportion with expectations of drivers at this site or any other site, and given the large nature of it, should have been highlighted more prominently, indeed there should have been a ‘red hand’ pointing to it.

A reasonable interpretation of the 'red hand rule' 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.

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.

The following judgment is binding case law from the Court of Appeal and is in support of my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.

 

2. NTK does not meet POFA 2012 requirements

The operator has failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give the invitation to keeper in the format prescribed by section 9 (2) (e) of the Act.

Furthermore, POFA 2012 Schedule 4 paragraph 9 refers numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NTK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

The NTK simply claims “the vehicle was parked at [location].”

The NTK separately states that the vehicle “parked at [location] on [date]”. At no stage does it explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

The operator cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

 

3. Evidence of Landowner Authority

I request that the operator produce an unredacted copy of the contract they have with the landowner. As a proof that they were authorised to do what they do. Witness statements will not be enough of a proof, as these are often pre-signed and ready to go.

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.

 

5. Breach of Consumer Contract Regulations 2013 and Ofcom regulations

Whilst I deny any contract has been formed, should they insist, the 0844 number breaches Regulation 41 of the Consumer Contracts Regulations 2013.

Furthermore, the 0844 number is also a breach of the parking industry Code of Practice. And CUP has claimed to be a part of the BPA.

Furthermore the omission of call costs from the sign breaches Ofcom regulations that took effect 1 July 2015.

 

6. The vehicle suffered a fault for which a purchase was made from Euro Car Parts

On the date in question, the vehicle experienced sudden and unforeseen electrical system issues, specifically a battery failure that also impacted the gearbox. The vehicle could not engage reverse gear and was limited to one forward gear, making it impossible to park correctly in a bay. To ensure safety and avoid obstruction, the vehicle was stopped in the safest available position. The vehicle was briefly left while a replacement battery was obtained from Euro Car Parts, located within the estate. Once the battery was installed, full functionality was restored. C.U.P Enforcement were provided with a a photo of the vehicle’s OBD readout on the day and also a purchase receipt from the retailer.

 

Therefore, it is respectfully requested that this parking charge notice appeal be allowed.

Yours faithfully, 

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ChirpyChicken

yea bung that in and see how you get on

Coupon-mad

I wouldn't show a close up of a sign.

The entrance pic is good as long as you include the metadata/screenshot of it to prove exactly when that entrance image was taken, and clearly argue (not burying it in template words): 'there is no entrance sign'.

BTW I'd never park like that on private land. Bound to get a PCN and probably unlikely to win at POPLA. No worries if not.

Wade_Barrett

Hey guys. Here are  the main bits of C.U.P Enforcement's comments for which I have 7 days to respond. I have redacted any sensitive information.

They are trying to say that the driver's identity has been established, but that isn't the case at all as I made sure not to do so in any correspondence I submitted. I just stated I was the owner and keeper and was careful not to ever say 'I' when explaining the circumstances.

They are also trying to say that the signage is fair and adequate which isn't the case at all. One of the signs they've  included a photo of as evidence is so far away it's a 2 minute walk to get there and they are passing it off as if its nearby and visible. Furthermore the dates on their photos of the signs are from a few months before the PCN was issued.

Any help is appreciated, thank you.

ChirpyChicken

Just confirm you appealed as the keeper alone.

Gr1pr

Soʻ post a short draft of your poplà comments based on those issues, plus anything else you can find , below, for critique

The deadline is 6 days from the notification date,  not 7 days 

Wade_Barrett

Gr1pr said:

Soʻ post a short draft of your poplà comments based on those issues, plus anything else you can find , below, for critique

The deadline is 6 days from the notification date,  not 7 days 

Thank you

Here are my comments: 

In response to the statements provided by CUP Enforcement regarding my POPLA appeal, I strongly refute their claim that the driver's identity has been established. Throughout my correspondence, I have been extremely careful never to disclose or confirm the identity of the driver. At all times, I have only identified myself explicitly as the registered keeper of the vehicle. I have purposely avoided using language that would imply or confirm my presence at the scene, thus CUP Enforcement’s claim of identifying the driver is incorrect and misleading.

Additionally, I contest their assertion regarding the adequacy and clarity of the signage at the location. One particular sign, included in their submitted evidence, is significantly distant—approximately a two-minute walk from where the vehicle was parked—yet they misleadingly represent this as being clearly visible and conveniently positioned near the vehicle. Furthermore, the photographic evidence they have provided, which shows the signage, is dated several months prior to the issuance of the PCN, raising serious concerns about its relevance, accuracy, and current applicability. Therefore, their claims about signage adequacy and visibility are neither accurate nor fair representations of the actual circumstances present at the time of the alleged contravention.

Gr1pr

What about points 2 , 3 & 4 in the popla appeal at the top of the thread  ?

They are the most likely winners, plus signage issues and the identification points above 

Wade_Barrett

Gr1pr said:

What about points 2 , 3 & 4 in the popla appeal at the top of the thread  ?

They are the most likely winners, plus signage issues and the identification points above 

So these 3 points: 

2. NTK does not meet POFA 2012 requirements

3. Evidence of Landowner Authority

4. Forbidding Signage

Would I just be mentioning these again or expanding on them?

Thank you

ChirpyChicken

Concentrate only on the non pofa aspect and hammer it home again

Gr1pr

Wade_Barrett said:

Gr1pr said:

What about points 2 , 3 & 4 in the popla appeal at the top of the thread  ?

They are the most likely winners, plus signage issues and the identification points above 

So these 3 points: 

2. NTK does not meet POFA 2012 requirements

3. Evidence of Landowner Authority

4. Forbidding Signage

Would I just be mentioning these again or expanding on them?

Thank you

You make your comments based on the allegations you made and their evidence pack,  if you find anything relevant 

But as per the last reply,  hammer home the lack of Pofa2012 compliance because that is the match winner,  so that one in your comments about driver not identified etc, but open with the Pofa2012 failure,  followed by not identifying the driver in any appeal 

Etc

You should also be studying the landowner authority part of the evidence pack, looking for problems you can highlight as a third point of the 4 points 

But as mentioned in the previous reply,  hammer home Pofa2012 as your main rebuttal