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  • FIRST POST
    • rbreen
    • By rbreen 28th Mar 17, 4:45 PM
    • 7Posts
    • 1Thanks
    rbreen
    Roadchef over stay parking charge - have appealed - what should i do next
    • #1
    • 28th Mar 17, 4:45 PM
    Roadchef over stay parking charge - have appealed - what should i do next 28th Mar 17 at 4:45 PM
    Some background,

    on the 1st of Feb this year I over stayed at a local Roadchef car park. Free parking was for the first two hours, i stayed 1 hr 3 mins over.

    Initially I appealed to CP Plus, which they rejected. I requested a popla code so I could follow their formal appeals process.

    Are there any points I should add to the appeals as they are asking for my comments. In their case summary they mention several court cases.

    Letter send to CP Plus 13/2/2017 via email

    To whoever at CP plus, you recently sent me a parking charge notice for the ridiculous amount of £100 ( reduced to £60 for early payment) this is a ridiculous amount for you to attempt to charge ( both the £100 and £60 sums) and as such i shall not be paying you a penny of it. As you have wasted my time in reading your letter, and responding to it you should be paying me. If you don't want to pay me, then please provide me with a popla code so this matter can be dealt with elsewhere at a cost to yourselves of £27+VAT, a sum which for yourselves is irrecoverable. I am fully aware that popla decisions are binding upon you (CP plus) but not on the registered keeper. I now consider this matter closed.
    Submitted

    CP Plus reply via email 15/2

    Dear Sir/Madam,
    Thank you for your correspondence concerning your Parking Charge Notice.
    The PCN was issued and the signage is displayed in compliance with The British Parking Association’s Approved Operator Scheme Code of Practice and all relevant laws and regulations.
    Your representations have been carefully considered but in light of the above, on this occasion, your appeal has been refused.
    We can confirm that we will hold the charge at the £60 rate for a further 14 days from the date of this correspondence, after which the full amount will be due.

    My letter to Popla was as follows :-

    To follow (need to get it from my other computer).

    Popla - CP Plus case summary response

    We received correspondence from Ms xxxx who appealed her PCN on the basis that she believes the amount is disproportionate and that she does not believe the operator has the authority to act on behalf of the landowner.

    Roadchef Chester has 2 hours free parking, after which charges apply. We have not received the £12 parking payment for the additional 1 hour 2 minutes that this vehicle remained on site.

    In Parking Eye Ltd v Beavis, it was found at County Court, Court of Appeal and Supreme Court level, that appealing a Parking Charge Notice on the basis that the amount is not a genuine pre-estimate of loss is not a successful defence in law.

    In the Court of Appeal judgment, Sir Timothy Lloyd held that “for the law to prohibit a provision such as the overstaying charge, on the basis that it bears no relationship to the loss suffered…would fail to take account of the nature of the contract, with its gratuitous but valuable benefit of two hours’ free parking, and of the entirely legitimate reason for limiting that facility to a two hour period.” The Judges considered whether a PCN could be invalidated on the grounds that the overstay was a genuine mistake, that the PCN is a penalty, that the Operator has no commercial interest or should charge a more modest amount and that the charge was a deterrent to the motorist. In the Court of Appeal judgment, these legal arguments were analysed and it was unanimously agreed that not one of them presented a legally valid basis for invalidating the charge. Instead, it was found that the provision of a free parking facility on a retail park is a useful service for motorists and shopkeepers alike. In the Judges’ estimation, a driver who overstays the allowed time period inconveniences the former group and causes a material loss to the latter.

    It was found that, in order to facilitate a turnover of visitors, the Terms and Conditions of a car park should provide a “disincentive to drivers.” The imposition of such charges was deemed to be “not extravagant or unconscionable and the contract was therefore enforceable at common law.”

    The Court of Appeal also explained that municipal parking charges are identical in nature and that only this method of enforcement, rather than a graduated system of charges where motorists pay a fee proportionate to the length of the time they have overstayed, can deter widespread abuse of car parks.

    The Supreme Court dismissed the appeal by a majority of six to one, declaring that the charge does not contravene the penalty rule or the Unfair Terms in Consumer Contracts Regulations 1999 and reiterating the conclusions of the Court of Appeal.

    We note that the judgments passed down by the County Court, Court of Appeal and Supreme Court have provided a clear endorsement of Operators’ rights to issue a PCN and established a legal precedent rebutting drivers who appeal a PCN on grounds that the charge does not reflect a genuine pre-estimate of loss.

    We therefore seek to rely on the authority of the higher Courts and would submit that the appellant in this case should not be afforded a defence in law that has been rejected by the judiciary.

    Whilst we note that the above case relates to a PCN issued at a free car park with a limited time period, we highlight that not only has the appellant received the valuable benefit of 2 hours free parking which is on offer to all drivers, Ms xxx remained on site for the period after the 2 hour limit for which she should have paid £12. As such there is a clear loss to be recovered in addition to the above legal case which did not involve paying for parking.

    Signage
    We confirm the signage is displayed in accordance with all relevant laws and regulations including those pertaining to their visibility outside of daylight hours. All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non prescribed signs. Advice and working drawings may be obtained from traffic.signs@dft.gsi.gov

    Comments from me.
    Lots of legal references above, need some help..

    They have provided a witness statement as below

    Witness Statement

    Dear Sir/Madam,
    On behalf of Roadchef Ltd I can confirm the following details:
    The site is ROADCHEF Chester, the Landowner/owner of the site is Roadchef Ltd, and the Operator is CP Plus Limited.
    Furthermore, I can confirm that the Operator has the authority of the Landowner to undertake parking management, control, and enforcement at the site. This authority was in effect during the time the PCN was issued on 26th January 2017. Included in this authority is the authorisation by the Landowner for the Operator to issue parking charge notices where vehicles are parked on the site in a manner not permitted under the terms and conditions of parking.
    The terms and conditions of parking are clearly set out on signage on site. The issuing of a parking charge notice is subject to the agreed criteria and exemptions, as also clearly set out on signage at the site.
    The Operator is authorised to issue a parking charge notice for breach of any of the terms and conditions referred to above. The Operator is also authorised by the Landowner to pursue the outstanding parking charge in accordance with the British Parking Association Approved Operator Scheme Code of Practice.

    I confirm that I am authorised to make this statement on behalf of the Landowner and that the above information is true to the best of my knowledge and belief.


    Name:

    M Heaton

    Position:

    Director of Commercial and Loss Prevention For and behalf of Roadchef Ltd

    Date:


    26/03/2017

    Signature:
    Last edited by rbreen; 28-03-2017 at 4:57 PM. Reason: removed full name
Page 1
    • Edna Basher
    • By Edna Basher 28th Mar 17, 8:26 PM
    • 591 Posts
    • 1,535 Thanks
    Edna Basher
    • #2
    • 28th Mar 17, 8:26 PM
    • #2
    • 28th Mar 17, 8:26 PM
    You're now at the stage of the POPLA process where you need to rebut CP Plus's evidence. POPLA will not let you add new points and so you will have to work with what you have already submitted.

    I hope you appealed to POPLA as the vehicle's keeper and if so, I hope you highlighted CP Plus's failure to comply with Schedule 4 of the Protection of Freedoms Act - the fact that CP Plus have forfeited the right to hold the keeper liable for the charge would be a certain winning point.
    Last edited by Edna Basher; 28-03-2017 at 8:31 PM. Reason: Typo
    • Coupon-mad
    • By Coupon-mad 28th Mar 17, 10:14 PM
    • 51,532 Posts
    • 65,134 Thanks
    Coupon-mad
    • #3
    • 28th Mar 17, 10:14 PM
    • #3
    • 28th Mar 17, 10:14 PM
    And as well as pointing out that where a NTK is not a POFA version - such as any CP Plus one which is only capable of potentially holding the unknown driver liable - POPLA must first consider if they are satisfied who the driver was. As the driver has not been identified, POPLA will be unable to find that the appellant is the individual liable.

    And unless you've changed the dates in the post above, to hide certain details, the so-called authority from Roadchef (shame on them) is about a completely different parking event/car, because it says:

    ''This authority was in effect during the time the PCN was issued on 26th January 2017.''

    Wrong date? Your OP says 1st Feb.

    And your should remark that CP Plus have entirely missed the point about the Beavis case being 'completely different' from a simple transactional dispute over a quantified unpaid sum. This is not like the Beavis case, is not about an overstay which gives rise to a 'parking charge' (all or nothing); it is about the driver being alleged to owe £12.

    But the sum of £12 to describe the unpaid parking charges payable by the driver on the day, is not stated anywhere on the Notice to Keeper and is very clearly able to be compared with Lord Dunedin's 4 tests for a penalty and found to be 'unconscionable and disproportionate' to the straightforward damages clause, namely the easily quantified sum of £12 which was a tariff for parking after 2 hours; something that did not feature in Beavis.

    The Beavis case is far more complex, with no quantified tariff in between and the decision actually states that only RARELY will a case disengage the penalty rule:

    At #22 the Supreme Court explored Lord Dunedin’s speech in Dunlop:
    ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was “unconscionable” or “extravagant”. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

    ''In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''



    So if the POPLA Assessor regurgitates the usual template 'Beavis applies to all because the BPA says so' paragraphs, it will prove POPLA do not understand the Beavis case any more than CP Plus do.
    Last edited by Coupon-mad; 28-03-2017 at 10:17 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • rbreen
    • By rbreen 3rd Apr 17, 11:32 AM
    • 7 Posts
    • 1 Thanks
    rbreen
    • #4
    • 3rd Apr 17, 11:32 AM
    • #4
    • 3rd Apr 17, 11:32 AM
    Thank you for your comments...

    I was finally able to locate the text I included in my appeal letter to Popla.

    --------------------------------------------------------------------------------


    Popla Car Appeal


    Over stay in car park


    I am appealing against the parking charge on the following grounds :-


    1. The amount of the charge is disproportionate to the loss incurred by CP Plus and is punitive and therefore a penalty, contravening the Unfair Contract Terms Act 1997. At the time of the overstay, the car park was only half full, therefore It is unclear how my overstay of one hour could have incurred a loss so high.


    2. CP Plus have no proprietary interest in the land and therefore have no authority to issue parking charge notices. CP Plus need to show supporting evidence. In particular please provide me with a copy of the contract between CP Plus and the landowner/landholder that provides the necessary contractual written authority for the issue and enforcement of your Parking Charge Notice - Notice to Keeper.


    Furthermore,. Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if itself is not the landowner, as to their role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice.


    In addition, I refer to Vehicle Control Services Limited - and - The Commissioners for Her Majesty’s Revenue and Customs [2012] UKUT 129 (TCC) the Upper Tribunal (Tax and Chancery Chamber) the Operator has no authority to issue parking charge notices, and should produce a copy of the contract between themselves and the landowner to show if they do have authority

    -------------------------------------------------------------------


    Any further comments to add ?
    • rbreen
    • By rbreen 3rd Apr 17, 11:43 AM
    • 7 Posts
    • 1 Thanks
    rbreen
    • #5
    • 3rd Apr 17, 11:43 AM
    • #5
    • 3rd Apr 17, 11:43 AM
    My wife is the registered keeper, I am appealing on her behalf.. She was not the driver at the time, however I failed to mention this in my opening appeal letter above!

    Am I correct in thinking that my appeal notes should say something like the following :-

    CP Plus have entirely missed the point about the Beavis case being 'completely different' from a simple transactional dispute over a quantified unpaid sum. This is not like the Beavis case, in that instance the dispute was about the driver being alleged to owe £12. My appeal centers on an overstay which allegedly gives rise to a 'parking charge';

    But the sum of £12 to describe the unpaid parking charges payable by the driver on the day , is not stated anywhere on the Notice to Keeper and is very clearly able to be compared with Lord Dunedin's 4 tests for a penalty and found to be 'unconscionable and disproportionate' to the straightforward damages clause, namely the easily quantified sum of £12 which was a tariff for parking after 2 hours; something that did not feature in Beavis.

    The Beavis case is far more complex, with no quantified tariff in between and the decision actually states that only RARELY will a case disengage the penalty rule:

    At #22 the Supreme Court explored Lord Dunedin’s speech in Dunlop:
    ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was “unconscionable” or “extravagant”. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

    ''In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.'

    Any other thoughts/ideas ?

    Thank you in advance
    • Coupon-mad
    • By Coupon-mad 3rd Apr 17, 2:27 PM
    • 51,532 Posts
    • 65,134 Thanks
    Coupon-mad
    • #6
    • 3rd Apr 17, 2:27 PM
    • #6
    • 3rd Apr 17, 2:27 PM
    This is not like the Beavis case, in that instance the dispute was about the driver being alleged to owe £12. My appeal centers on an overstay which allegedly gives rise to a 'parking charge';
    You've written that back to front - the Beavis case wasn't about £12, but your case is.

    My wife is the registered keeper, I am appealing on her behalf.. She was not the driver at the time, however I failed to mention this in my opening appeal letter above!
    So mention it. I assume the appeal was done in your wife's name as keeper? If she wasn't driving, say so - and point out to POPLA that CP Plus have not used a POFA compliant NTK and as the appellant was not the driver, POPLA cannot be satisfied that the appellant is the person liable for the charge.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • rbreen
    • By rbreen 3rd Apr 17, 4:40 PM
    • 7 Posts
    • 1 Thanks
    rbreen
    • #7
    • 3rd Apr 17, 4:40 PM
    • #7
    • 3rd Apr 17, 4:40 PM
    thanks for that... yes, the appeal was done in my wife's name as the keeper.

    the deadline runs out tomorrow evening for my feedback.. I'll update this thread with the results (hopefully positive).
    • nigelbb
    • By nigelbb 3rd Apr 17, 6:56 PM
    • 1,937 Posts
    • 2,690 Thanks
    nigelbb
    • #8
    • 3rd Apr 17, 6:56 PM
    • #8
    • 3rd Apr 17, 6:56 PM
    The last sentence in paragraph 1 identifies the appellant as the driver. Everything should be in the third person 'the driver did this' act never say 'my', 'me', 'I' etc
    Please go back & read the sticky explaining all this stuff.
    • rbreen
    • By rbreen 17th May 17, 8:38 PM
    • 7 Posts
    • 1 Thanks
    rbreen
    • #9
    • 17th May 17, 8:38 PM
    Lost the appeal
    • #9
    • 17th May 17, 8:38 PM
    Hi all,

    My appeal was rejected and today I recieved a letter from CPS increasing the charge to £140 and stating "in the event payment is not recieved within 14 days from the date of this letter, we can confirm that this case will esclate accordingly and further action will be taken".

    I made an error with the wording of my appeal stating it as first person (I was the drive but the charge was sent to my wife!).

    So what do I do now ?

    ---------------
    OFFICIAL RESPONSE FROM POPLA

    When entering onto a managed private car park, a motorist might enter into a contract by remaining on the land for a reasonable period. The signage at the site will set out the terms and conditions of this contract. Therefore, upon entry to the car park, a motorist should review the terms and conditions before deciding to park. The operator has provided photographic evidence of the signage at the site that states, “FREE PARKING FOR 2 HOURS: Charges Apply For All Vehicles After 2 Hours: If you park you agree to pay all vehicles first 2 hours free – thereafter: Cars: £1200 up to 24 hours: £100 if you fail to pay or park incorrectly or park in a non-designated area or conduct any commercial activity a Parking Charge Notice (PCN) will be issued as this parking area is private land.” The operator’s case is that the PCN was issued because the appellant’s stay exceeded the free parking period and a payment was not made.

    The site operates Automatic Number Plate Recognition (ANPR), the appellant’s vehicle registration xxxxxxx was captured entering the site at 09:47, exiting at 12:50. The total period of stay was three hours and three minutes. The operator has provided a system generated print out, showing a search for the appellant’s vehicle registration number. This confirms that the vehicle has not been registered on the system for additional parking on the date of the event. The appellant’s case is the operator has no proprietary interest in the land and therefore has no authority to issues PCNs.

    Section 7.1 of the British Parking Association (BPA) Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. As such, I must consider whether the operator has met the requirements of this section of the BPA Code of Practice. The operator has provided a witness statement from the landowner. After reviewing this, I am satisfied that the operator had the authority to issue PCNs on the date in question.

    The appellant says that the charge is disproportionate to the loss incurred by the operator. They say that it is unclear how their overstay of one hour could have incurred a loss so high. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin.

    Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” The signage at the site is in full compliance with Section 18 of the British Parking Association (BPA) Code of Practice with particular reference to Section 18.3 which states “signs must be conspicuous and legible and written in intelligible language so that they are easy to read and understand”. Having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. I acknowledge the appellant’s comments in response to the operator’s evidence of them not being the driver. However, after reviewing the initial appeal I am satisfied that the appellant was in fact the driver on the day in question. The appellant has advised that it is unclear how their overstay of one hour could have incurred such a high cost.

    The fact that the appellant has said “their overstay” I am satisfied that this is clear that they were the driver on the day in question. Ultimately, it is the motorist’s responsibility to ensure that they comply with the terms and conditions of the car park and that a payment is made if required. POPLA’s role is to assess if the operator has issued the PCN in accordance with the conditions of the contract. In this case, as the appellant’s vehicle has been on site without purchasing a ticket for the additional time on the site, the terms and conditions of the car park have not been met.

    I conclude that the operator has issued the PCN correctly. Accordingly, I must refuse this appeal.
    • Coupon-mad
    • By Coupon-mad 17th May 17, 8:41 PM
    • 51,532 Posts
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    Coupon-mad
    I made an error with the wording of my appeal stating it as first person (I was the drive but the charge was sent to my wife!).
    You realise that's why you lost? WHY? This one was so easy for the keeper to win!


    So what do I do now ?
    Nothing. NOTHING.

    Read all the others threads from people who wrote weak appeals and lost at POPLA, who are also not fretting, not doing anything.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • rbreen
    • By rbreen 22nd May 17, 9:53 PM
    • 7 Posts
    • 1 Thanks
    rbreen
    Thanks
    Thanks for that..

    and yes, i'm aware why I lost ..
    • Coupon-mad
    • By Coupon-mad 22nd May 17, 11:06 PM
    • 51,532 Posts
    • 65,134 Thanks
    Coupon-mad
    OK, so move on and ignore them and come back if they try a small claim.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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