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Euro Car Parks, POPLA appeal
Wermerling
post Mon, 6 Apr 2020 - 12:06
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Hello

I received a NTK from Euro Car Parks and have got to the point of providing comments to their evidence in the POPLA process. It has taken 3 days for their evidence to upload to the site leaving me until Friday to respond. I received notification last Friday that POPLA had received operator evidence and that it may take up to 13 hours to upload... Not 3 days!!!

I'd appreciate any comments on the evidence pack and the original appeal points. The operator evidence contains 23 pages of generic statements some images without context rather than a rebuttal of the points in the appeal. I am still reading through this but would welcome some insight as I'm sure I'll miss some obvious things. The response to the signage is misleading. There are only two signs outlining terms in the whole car park bar the one at the entrance that is mentioned in the appeal. The other signs (shown on the map by an 'x') are simply signs saying that blue badge holders also have to pay. They don't rebut the statements around the confusing nature of the signage. The compliance of the NTK with POFA is also washed over by simply stating that it is compliant. The contract with M & S that they have provided doesn't actually say who has signed it and their authority to do so... Just a signature of someone! As I say, I am still processing this as I've only received it today but these are my initial summary thoughts to respond with. Any comments/corrections/additions/errors (definitely additions/erros!) would be incredibly welcome.

Thanks smile.gif

*Just realised the operator evidence is too large to upload - I've edited a few pages out to reduce the file size such as the original appeal rejection (as expected) and the full images of the car on a road from. front and rear.

This post has been edited by Wermerling: Mon, 6 Apr 2020 - 12:14
Attached File(s)
Attached File  POPLA_Appeal.pdf ( 483.41K ) Number of downloads: 201
Attached File  Operator_evidence_edited.pdf ( 1.48MB ) Number of downloads: 56
 
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post Mon, 6 Apr 2020 - 12:06
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Wermerling
post Wed, 8 Apr 2020 - 15:36
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Hello

So I've started to have a stab at rebutting the operator evidence. I would welcome any thoughts if possible please. I don't know where to start with the contract as I'm not sure it is a contract - it's just a signature and nothing that states who the agreement is with at Mark and Spencers (if that matters at all). I have added paragraph numbers below. Thanks in advance. POPLA have extended my time to reply until Monday as it took three days for the operator evidence to upload.


1. Notice to Keeper (NTK) compliance with POFA

i) I have clearly outlined in the appeal where the NTK does not comply with POFA but stating the differences between the wording. Euro Car Parks have not addressed this in their rebuttal. They have not provided confirmation from the BPA and the IPC that the NTK is compliant. They also state that Gladstones Solicitors have checked the NTK but again provide no evidence of this. I have provided clear evidence of where the NTK does not comply with POFA. ECP have failed to respond to these direct points from the appeal and have instead provided two generic statements that provide no evidence of POFA compliance and their NTK template (figure 1) that contains some highlighted boxes (that only highlights further the areas that are not compliant with POFA). They do not explain how their NTK is POFA compliant against the points my appeal highlighted.

ii) To reiterate, and I will use the BPA’s own code of practice to reinforce this point. Section 21.2 states, “As long as the strict conditions of Schedule 4 are met, you may claim payment from the keeper”. POFA is clear in its strict condition that the keeper must be invited to tell the operator who the driver was. EPC state that the keeper “should” provide this information which is misleading and not following the strict conditions of POFA. The BPA COP reinforces this within point 21.11 :
The Notice to Keeper serves three purposes:
• it invites the keeper to pay the unpaid parking charge
• if the keeper was not the driver it invites the keeper
to tell you who the driver was, and
• It starts the 28-day time period after which the keeper may become liable to pay the unpaid parking charge.

iii) EPC’s NTK does not comply with POFA and therefore the Keeper cannot be held liable for this invoice.

2. Misleading signage plan/lack of signage provided by ECP

i) ECP’s signage plan provided in their operator evidence is misleading and clearly located in areas whereby it is impossible for a potential customer read the signs without parking and leaving their vehicle. As ECP have not outlined this in their response I will do so after visiting the car park on receipt of their operator evidence.

ii) There is clearly limited signage relevant to this case within the car park. By not explaining what each of the signs state ECP may be suggesting that all of the signs are the same as in figure 2. This is not the case.

a) Sign MSPD3 is impossible to see for a driver entering the car park. It would only be possible to see on foot. The image that ECP have provided of this sign has been taken from the pedestrian pathway, on foot, and in a standing, uninterrupted position. Once in the car park, it is behind the M & S Food Hall sign and obscured.
b) Sign GDPR, in relation to the use of data is positioned outside of the car park and would only be seen on foot if an individual was walking into the car park or if they walked past it on departure. There is only one sign.
c) Sign MSPD3 (right had side of screen shot) is located in a corner of the car park that is inaccessible to the public in the deliveries area. Again, a customer has little to no chance of reading this.
d) The signs marked ‘x’ and ‘DB1’ are outlining the terms of conditions for disabled drivers specifically and relate to blue badge restrictions and not the broader terms and conditions of the car park. Please do not be misled that there is plentiful, repeated signage in this car park
e) Sign MSPD1 is repeated twice in the entire car park. It is these two signs that I will discuss in more detail and their confusing nature. However, I would like to draw your attention to the signage plan provided by ECP. Only two observable signs outlining their supposed terms and conditions for parking in a car park of this size is clearly not aligned to the BPA COP 19.1: “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. You must use signs to make it easy for them to find out what your terms and conditions are”. I put it to the adjudicator that EPC’s signs are a) not positioned to be seen from the start of parking and b) presented in such a way that it makes it easy for a customer to find out what the terms and conditions are

3. Ambiguous terms and conditions/unclear signage

i) ECP have not taken the time to respond to the nature of their wording and its ambiguous nature as outlined in my appeal. They have simply highlighted the lack of signage and emphasis placed upon one of their primary terms and conditions in the parking is limited to 1.5 hours. The headline in red in a large font, “ 1 hour free parking for customers via refund” is ambiguous. Hence the driver believing that this was in addition to the 1.5 hour limit which EPC have highlighted in figure 2 which is written in a bullet point style fashion and in a smaller font. There is so much text on the sign that it is very challenging to be entirely clear what the terms and conditions actually are. The driver met the conditions in the way that they understood them. They paid for 1.5 hours parking and they shopped in M & S believing that they had paid for the time to do so.

ii) ECP are also ambiguous in their rebuttal points. They state that “all drivers are required to adhere to the maximum stay on site” yet their signage relates to a maximum period of parking. A ticket was purchased but the driver would not have been aware that they were ‘on the clock’ from the moment they entered the car park. ECP have provided no evidence of the duration to which the vehicle was parked and have just provided two images of a vehicle on an identifiable stretch of road.

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