Euro Car Parks - Parking Charge

POPLA Verification Code: XXXXXXX


Vehicle Registration: XXXXXXX


I, the registered keeper of this vehicle, received a letter dated xxx acting as a
notice to the registered keeper. My appeal to the Operator – Euro Car Parks – was submitted
electronically via the operator’s website on xxx. An acknowledgement email was
received on the same day, followed by a rejection letter dated 01/03/2018.


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


1. The entrance signs are not prominent, clear or legible from all parking spaces,
especially in relation to the sum of the parking charge itself.


2. NtK does not meet PoFA2012 requirements – no POFA-compliant keeper liability
warning


3. Given the NTK is non-compliant with POFA 2012 Schedule 4, the operator has not
shown that the individual who it is pursuing is in fact the driver who was liable
for the charge


4. No Evidence of Landowner Authority -the operator is put to strict proof of full
compliance with the BPA Code of Practice


1 The entrance signs are not prominent, clear or legible from all parking
spaces, especially in relation to the sum of the parking charge itself.


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.


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 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.


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Figure 1: close up of the parking sign


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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. Figure 2 also shows the


Figure 1-2 clearly show that UKPC signage does not comply with the BPA Code of
Practice (18.3), specifically: “Signs must be conspicuous and legible, and written in
intelligible language, so that they are easy to see, read and understand.
The BPA Code of Practice (Appendix sets the requirements for entrance signs. The
following requirements, set out in Appendix B, are disputed:


- The sign should be placed so that it is readable by drivers without their needing
to look away from the road ahead.
- 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. Thiscan 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 are tro-reflective material
similar to that used on public roads and described in the Traffic Signs Manual.
In disputing points 1 and 2 above, the relevant entrance sign in this appeal case is not
readable by drivers without their need to look away from the road ahead, nor is it
readable and understandable at all times.


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 vs London Borough of Waltham Forest [2000]
EWCACiv106’ 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:
xxx
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),
in the same lighting conditions. 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 to this, 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 £sum,
which is illegible in my photographs - is NOT sufficient to bring the parking charge (i.e.
the sum itself) to the attention of the motorist 2 NtK does not meet PoFA2012 requirements no POFA-– compliant keeper liability warning.


The NtK fails to comply with PoFA 2012 requirements for adequate warning of keeper

liability. Paragraph 8 of schedule 4 PoFA 2012 details the requirements that must be met
with regards to ‘a notice which is to be relied on as a notice to keeper for the purposes
of paragraph 6(1)(a)’. Most notably, paragraph 8(2)(f) requires the NtK to:
“warn the keeper that if, at the end of the period of 28 days beginning with the day
after that on which the notice to keeper is given-


- (i) the amount of the unpaid parking charges (as specified under paragraph (c) or (d))

has not been paid in full, and


- (ii) the creditor does not know both the name of the driver and a current address for
service for the driver, ” This is in clear conflict with the UKPC NtK, which chooses to set its own conditions as follows:
“If, after a period of 42 days, (beginning with the day after this Notice is given), the
amount requested in this Notice has not been paid in full (or we have not been informed
of the driver's name and current address) the charge will be passed to our debt recovery
team, and a further charge of £60 will be incurred.”
In my view, this wording does not establish the correct conditions for keeper liability as
presented above, and hence renders the NtK non-compliant.


3 Given the NtK is non-compliant with POFA 2012 Schedule 4, 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 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. I am the
keeper 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
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.


4 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
POPLAbut 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 Code of Practice) 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 in small print 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.