POPLA appeal review please. Louth machine wouldn’t take money. PCN received

I was able to go back to the carpark and the sign showing a number to pay by phone was obscured from where you stand at the machine. In fact, it was near to the other exit so I didn’t walk past it either - definitely not obvious, I had to search when I went back! I took a picture to show it couldn’t be seen from the machine.

Hi, I would be really grateful for some advice/comments on my POPLA appeal letter below which I’ve constructed from various other letters and have, hopefully, put together sufficiently to reflect my case.
I’d also appreciate clarification on the timings of LTKs as I just can’t work out if ECP have been compliant! The car was parked on 24/08/2018. A NTK was received by the lease car company on 4/09/2018 (I have an email with their date stamped NTK) and then the NTK, dated 25/09/2018, was received by my husband (hirer) on 27/09/2018. So the Lease car company received it 11 days after the ‘offence’ and it arrived at our house 23 days after that.
We also only received the NTK and not any other documents - which I believe we should have had as in the legislation here:

14(1) If—
(a) the creditor is by virtue of paragraph 13(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and
(b) the conditions mentioned in sub-paragraph (2) below are met,
the creditor may recover those charges (so far as they remain unpaid) from the hirer.
(2) The conditions are that—
(a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) a period of 21 days beginning with the day on which the notice to hirer was given has elapsed; [/I][/I]

I have been in contact with someone who received a PCN on the same day who was unable to pay due to coins not being accepted by the machine - and in correspondence to the local paper, it seems this problem is not a one off!

However, in my previous thread asking for advice, one of the comments stated that an unpaid ticket is usually a clear cut case for the parking company - so I’m looking for some advice please on whether it is worth me trying to fight this at all? It’s already caused me a lot of stress (I’m dealing with it on behalf of the registered keeper who is my husband but who was not the driver and has refused to investigate who the driver was - obviously anyone with a licence is allowed to drive the vehicle and that means there are several people who could have). However, in trying to fight this, I have been reduced to tears with it (lol, yes I am a light weight and have got worse with age!!) as the thought of an already extortionate £60 going up to £100 makes me feel ill!

I have been informed that the driver spent over 5 minutes with different coins trying to pay, but the bottom line is they parked without a ticket! If this is such a clear win for the company, then as registered keeper, my husband would rather pay sooner than later even though we feel strongly that they were at fault for not having a machine in working order!
I haven’t made any reference to the driver trying to pay with coins and being unable to so am not sure whether I should have?
I’ve also added some comments in part 4 of the appeal, and will put supporting photos in when I upload it.

Comments are gratefully received! Thank you

LETTER FOR SENSE CHECK:
POPLA Verification Code: xxxx
Vehicle Registration: XXXX

As the registered keeper of this vehicle I received a letter dated 25/09/2018 acting as a notice to the registered keeper. My appeal to the Operator – Euro Car Parks – was submitted and subsequently rejected via an email dated 27/10/2018. I contend that as the keeper I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
The entrance signs are inadequately positioned and lit and 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
The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for


1. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper 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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 keeper without a valid NTK.

As the keeper 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator 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 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 keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

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.’’

2. 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot
be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA Code of Practice 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

3. 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:

link to go here

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:

link to go here

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.

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:

link to go here

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

link to go here

''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:

link to go here

''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:

link to go here

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.
In addition, the BPA Code of Practice (18.1) clearly states that:

“A driver who uses your private car park with your permission does so under a licence or
contract with you….In all cases, the driver’s use of your land will be governed by your terms and
conditions, which the driver should be made aware of from the start.”

Bearing this paragraph in mind, there was categorically no contract established between the driver and Euro Car Parks. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated.
Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

4. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Euro Car Parks signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

The Euro Car Parks main sign in the car park (see Figure 1) states:

We are using cameras to capture images of vehicle number plates and calculate the length of stay between entry and exit at all times including bank holidays.

Specifically missing from this sentence is the vital information that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices. The only reference to Parking Charge Notices on Euro Car Parks; sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states (see Figure 1):


This car park is controlled, failure to comply with the following will result in the issue of a £100 Parking Charge Notice (£60 if paid within 14 days of issue).

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
and paragraph 69:
Contract terms that may have different meanings:
If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 because the operator 'fails to identify its commercial intent':
link to go here

Misleading omissions: 6.-(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph
(2)-
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.

Lol, no definitely not. But I would appreciate a glance over the points to check I have all relevant ones and also on point 4 where I added some points relevant to the location. I'd also like to get some feedback on the questions I raised at the beginning of the epic post..about carrying on to the end... I think we are just a bit (muchly!) nervous about the whole thing!
But any comments/advice you can give Umkomaas are, as always, gratefully received. Thank you.

Thanks for that advice - I’ve amended the post and included the lack of documents in part 1.

I appreciate the time you’ve taken to respond and generally feel very encouraged after reading your comments :-)
I do waver though between feeling very positive of a good outcome and anxious about the £100 haha!
I assume a company lease car agreement is the same as a hire agreement? I know that my husband signed something to say he was responsible for any speeding tickets etc. Just wondering if ECP can’t get the money from us on this technicality, can they pursue the lease car company? In which case we’d still have to pay!