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  • FIRST POST
    • Splad
    • By Splad 21st Aug 17, 7:52 PM
    • 7Posts
    • 15Thanks
    Splad
    Cedar Lane Car Park Frimley
    • #1
    • 21st Aug 17, 7:52 PM
    Cedar Lane Car Park Frimley 21st Aug 17 at 7:52 PM
    The Cedar Lane Car Park in Frimley was notorious for the zeal with which shoppers were wheel-clamped for minor infringements. Such was the scale of the complaints to Councilors and the Surrey Heath MP Michael Gove, the issue was taken to Westminster and the law making wheel-clamping on private land illegal was brought about.

    The site is now managed by “Civil Enforcement Ltd”, but the complaints still go on.

    Recently, my wife borrowed the family car when her own developed a fault. She parked in the Frimley car park and paid for her stay using “Phone and Pay”. Having used the site before, the automated phone message linked her own vehicle registration to her mobile phone and asked her to confirm that the registration was correct. Due to a brief lapse in memory, she pressed the key pad for “Yes” forgetting that she was in a different car.

    Needless to say, a PCN duly arrived a month later addressed to me as the Registered Keeper. I naively thought that since there was no attempt to avoid payment, CEL would accept the innocent mistake and cancel the CPN. Not having come across the MSE forum with all its wonderful advice, I appealed the charge, fortunately not giving the driver’s name or address. The appeal was rejected and I was given a POPLA number. Then I found this Forum. I spent several days researching and have just submitted my appeal.

    Here are the grounds I have submitted:

    The operator has failed to identify the driver of the vehicle; neither has the operator demonstrated that the Appellant is the driver and therefore liable for the charge

    The Appellant was not driving the vehicle at the time of the alleged parking infringement, and therefore not liable for the parking charge. The operator has not offered any proof as to the name or address of the driver and has sent the PCN to the Registered Keeper of the vehicle, the Appellant.

    The PCN merely states that payment is required, but not from whom. The only reference on the PCN as to who is liable to pay the charge can be found on the “tear off” Payment Slip at the bottom of the PCN. The wording, in a miniscule font, suggests that the operator knows that the driver is responsible for the alleged charge, but is unsure that the Registered Keeper to whom the PCN was sent was in fact the driver. Technically, the Appellant suggests, this does not actually form part of the Notice. If the recipient of the PCN does not intend to pay the charge, the payment slip is not necessarily going to be read.

    The operator has failed to transfer liability for unpaid parking charges from the driver to the Registered Keeper of the vehicle, the regulations for which are laid out in the Protection of Freedoms Act (PoFA) 2012

    The driver has not been identified and as such the operator is attempting to pursue the Appellant as the Registered Keeper of the vehicle. If the operator wishes to pursue the Registered Keeper of the vehicle for the unpaid parking charge, by law he must follow strict rules or liability will not pass from the driver to the keeper. The statute in which these regulations are laid out is the Protection of Freedoms Act (PoFA) 2012.

    Schedule 4 of the PoFA, Paragraph 9 states:

    “(4) The Notice must be given by – (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
    (5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.”

    The PCN was issued on 24th July 2017 so the earliest date for service could only be 26th July, which is 30 days after the alleged event. This far exceeds the statutory time period of 14 days.

    Furthermore, Paragraph 9 (2) of Schedule 4 advises that the notice must:

    “(f) Warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i) the amount of the unpaid parking charges specified under paragraph (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,
    the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”


    and the notice must:

    “(i) Specify the date on which the notice is sent (where it is sent by post) or given (in any other case).”

    The PCN refers to the due date for payment being 28 days from the issue date, not 28 days beginning with the day after that on which the notice was given. There is no claim in the notice that the keeper becomes liable for the charge after that date. There is no claim by the operator that the driver’s name and address are unknown. The date when the notice was issued has been specified rather than that when the notice was sent.

    In conclusion, the PCN is not a valid Notice to Keeper (NTK) under the rules laid down in the Protection of Freedoms Act (PoFA) 2012, therefore the only individual who can be held liable for the alleged payment is the driver of the vehicle. The Appellant was not the driver; the operator has not determined the driver’s name and address. It has been held by POPLA on numerous occasions that a parking charge cannot be enforced against a keeper without a valid NTK.

    The signage in this car park does not comply with the British Parking Association (BPA) Code of Practice. Wording is not conspicuous, clear or legible and there is insufficient emphasis of the parking charge itself to bring it to the attention of the motorist

    It is submitted that there was no contract or agreement on the parking charge since the driver did not have a fair opportunity to read about any terms or conditions relating to it. Furthermore, The automated phone message gave no mention whatsoever of “Terms and Conditions”, or that an incorrect vehicle registration could invoke a Parking Charge.

    Within section 18.1 of the British Parking Association (BPA) Code of Practice it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.”

    Section 18.3 states that signs showing terms and conditions should be at least 450 mm x 450 mm.

    Although the signs in the Frimley car park are 600 mm high by 500 mm wide, the majority of the sign is taken up explaining the parking fees and the method of payment.

    The section of the sign devoted to terms and conditions (including the notification of the parking charge) is only 160 mm high by 500 mm wide and the font is a tiny ¼ inch (6 mm) high, thin, white lettering against a blue background. The charge is totally inconspicuous to motorists, even when they stand directly in front of the sign 3 feet away from it. From inside a vehicle, parked directly in front of it, the terms and conditions including the parking charge are not readable at all.

    The principle that a particularly onerous term in a contract, such as the £100 charge, should be explicitly brought to the attention of the motorist, is explained by application of Lord Denning’s so called “RED HAND RULE”, the origin for which is to be found in Spurling v Bradshaw Ltd, where Lord Denning said:

    “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient.”

    The charge is unreasonable and not a genuine pre-estimate of loss

    Following on from, and linked to the previous ground for appeal, is the Appellant’s contention that the £100 charge is effectively an unlawful penalty charge, in this instance meted out because the elderly driver forgot for a moment that they were not driving their usual vehicle.

    The driver paid in full for their parking; in fact paying more than was necessary to cover their stay. The operator suffered no loss at all, and had they accepted the Appellant’s initial representations, costs to them would have been minimal. The £100 parking charge is far in excess of any losses the operator could anticipate, or is likely to have incurred.

    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, summarised the judgement in the official Press Summary: “…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 [paragraph 99 in the full Judgement]. 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 [paragraphs 100-101 in the full Judgement].”

    The “Beavis” case is substantially different and not applicable here because the Supreme Court ruling applied to the very specific set of circumstances which applied in that particular case. The parking was free, and the only source of income for the operator to manage the car park had to come from motorists who for whatever reason, failed to abide by the terms and conditions.

    Of significant importance was the fact that the signs (shown here) in the “Beavis” case were particularly legible and informative, with the parking charge printed in a very large yellow font (about 1½ inch) inside a 3 inch black square, which could not be missed. By comparison, the parking charge buried within the “small print” on the Frimley car park signs is printed in a ¼ inch font, which makes finding it like looking for a needle in a haystack.

    Signs within the car park refer to “ANPR cameras” or merely “ANPR”, and that they are used to “monitor compliance of these terms and conditions”, but do not tell the motorist what ANPR stands for, or what kind of data is recorded, or how that data will actually be used

    Paragraph 21.1 of the British Parking Association Code of Practice, in relation to Automatic Number Plate Recognition (ANPR), advises operators that they “may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner”. The Code 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.

    The operator’s signs fail to comply with the code because they neglect to notify the driver what the ANPR data would be used for. There is no indication what the initials “ANPR” actually mean and the average person (the Appellant included, until researching the topic) has no idea. The entrance sign at the car park mentions “ANPR”, but does not even state that this refers to cameras.

    The terms and conditions on the other signs (in the ¼ inch high font) merely state that the operator monitors: “…compliance of these terms and conditions using ANPR cameras…”, again without stating what “ANPR” means. There is no indication that data is actually collected, or what the data is, i.e. that the data is a photograph of a vehicle and its number plate taken before it has entered the car park. There is no indication that the data will be used to record the length of time spent at the car park (rather than the length of time actually parked) or that it will be used to track down the keeper of the vehicle.

    The time stamps on the ANPR camera images are inaccurate

    The ANPR camera records the number plate of a vehicle as it enters the car park, and again as it leaves, but does not give an accurate assessment of the time actually spent in a parking bay.

    On the occasion in question, according to the statement on the CPN, the vehicle parked at 11.35 am. (The Appellant is unable to verify this alleged car park entry time, as the photographs are very indistinct). The car park is small, but always has available spaces due to its unpopular reputation.

    The driver quickly found a space and parked, then immediately used the “phone and pay” facility. The text giving permission to park was received at 11.42 am, seven minutes after the recorded entry time.

    The Appellant has recorded the time it takes to make the phone call and receive the authorising text as being just under three minutes. If one allows a further minute to find a space and park, there is still a three minute discrepancy.

    It is the Appellant’s contention that the ANPR camera did not accurately record the entry time and he puts the operator to proof that the cameras are regularly maintained and that on the 26th June 2017 the entry camera was time synchronised accurately.

    The Appellant questions the operator’s authority to operate on the land. The landowner is not identified on the signage

    The entry sign does not state the name of the landowner. There is no evidence that the operator has sufficient landowner authority to carry out car parking management on the land in compliance with the British Parking Association (BPA) Code of Practice.

    Section 7.1 of the 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) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary, or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.”

    As this operator does not have proprietary interest in the land then the Appellant requires that they produce for inspection a copy of the contract with the landowner.

    In conclusion, the Appellant has put forward 7 grounds for appealing the issue of this PCN and trusts that POPLA will allow this appeal.


    I hope that this will be successful – I will post the POPLA decision in due course.

    Very many thanks to all the organisers and contributors who make this invaluable resource available.
Page 1
    • Coupon-mad
    • By Coupon-mad 22nd Aug 17, 1:14 AM
    • 51,584 Posts
    • 65,205 Thanks
    Coupon-mad
    • #2
    • 22nd Aug 17, 1:14 AM
    • #2
    • 22nd Aug 17, 1:14 AM
    Well done - because you didn't name the driver, you will win on that point!
    • Splad
    • By Splad 22nd Aug 17, 9:03 AM
    • 7 Posts
    • 15 Thanks
    Splad
    • #3
    • 22nd Aug 17, 9:03 AM
    • #3
    • 22nd Aug 17, 9:03 AM
    Many thanks, Coupon-mad, for your optimism.
    • Guys Dad
    • By Guys Dad 22nd Aug 17, 6:30 PM
    • 10,206 Posts
    • 9,348 Thanks
    Guys Dad
    • #4
    • 22nd Aug 17, 6:30 PM
    • #4
    • 22nd Aug 17, 6:30 PM
    Why bring up Beavis and GPEOL? Might do you more harm than good

    Your 14 day point should be a single point appeal winner on its own and should be prominent at number 1.
    • Splad
    • By Splad 22nd Aug 17, 7:47 PM
    • 7 Posts
    • 15 Thanks
    Splad
    • #5
    • 22nd Aug 17, 7:47 PM
    • #5
    • 22nd Aug 17, 7:47 PM
    Many thanks for your input Guys Dad.

    I was in two minds as to whether or not to bring in Beavis and GPEOL but in the end elected for completeness because at the end of the day the driver did pay the parking fee and CEL suffered no loss.

    Also, the signs in this car park really are that bad and Beavis seems a good way to emphasise the difference between a "good" sign and one which is so poor that the parking charge could not possibly be spotted by 99% of motorists using the car park.

    The 14 day point I know is a winner, but for my first point I wanted POPLA to be absolutely clear that I was not the driver, but as the keeper who received the PCN I am the person who has to make the appeal. As I see it, points 1 and 2 are linked so effectively the 14 day point is "up front" as it were.

    CEL I assume has to answer every point and it seems from advice given on this site that if there are too many issues which have to be answered, CEL may well fold. Time will tell!!
    • Splad
    • By Splad 9th Sep 17, 9:00 AM
    • 7 Posts
    • 15 Thanks
    Splad
    • #6
    • 9th Sep 17, 9:00 AM
    • #6
    • 9th Sep 17, 9:00 AM
    CEL did fold as hoped.

    "Thank you for submitting your parking charge Appeal to POPLA.

    An Appeal has been opened with the reference XXXXXX7573.

    Civil Enforcement have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

    Yours sincerely

    POPLA Team"

    I have seen another post relating to this particular car park, where CEL effectively threw in the towel when asked to supply evidence of landlord authority. I suspect that the landlord may be unwilling to be identified given the notoriety of this car park.

    Once again, thanks to all who contribute to this valuable resource. I'll stick the result on the POPLA results thread.
    • beamerguy
    • By beamerguy 9th Sep 17, 9:27 AM
    • 6,353 Posts
    • 8,166 Thanks
    beamerguy
    • #7
    • 9th Sep 17, 9:27 AM
    • #7
    • 9th Sep 17, 9:27 AM
    Good news

    The magic of CEL fails again

    Why don't you have a word with your local newspaper
    about this.
    It will let others users of this car park know what to do

    Local articles about parking cowboys usually reach the
    National press which is good for everyone except the cowboys
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Umkomaas
    • By Umkomaas 9th Sep 17, 10:03 AM
    • 15,572 Posts
    • 24,322 Thanks
    Umkomaas
    • #8
    • 9th Sep 17, 10:03 AM
    • #8
    • 9th Sep 17, 10:03 AM
    @Splad. Just commented against your post in the POPLA Decisions sticky. Nice result for you, well done.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • The Deep
    • By The Deep 9th Sep 17, 10:14 AM
    • 7,384 Posts
    • 6,427 Thanks
    The Deep
    • #9
    • 9th Sep 17, 10:14 AM
    • #9
    • 9th Sep 17, 10:14 AM
    Quite frankly, I do not blame the PPC for chickening out, it would have cost them a lot more than they were after to deal with this, with any subsequent court case costing them a few hundred more.


    It is much more profitable to go after easier game. Well done.
    You never know how far you can go until you go too far.
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