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  • FIRST POST
    • GeoffBungle
    • By GeoffBungle 12th Oct 17, 4:20 AM
    • 33Posts
    • 22Thanks
    GeoffBungle
    ParkingEye - Selly Oak Pay and Display - POPLA appeal
    • #1
    • 12th Oct 17, 4:20 AM
    ParkingEye - Selly Oak Pay and Display - POPLA appeal 12th Oct 17 at 4:20 AM
    Hello,

    I've received a PCN from ParkingEye for a 19-minute 'stay' in this pay and display car park.

    Sadly, said PCN (£100 or £60 if paid, etc.) was not a golden ticket, as mentioned elsewhere on these forums.

    As the registered keeper, I've appealed to them directly (rejected), and am in the process of drafting a POPLA appeal using the very helpful information on this forum. I'm hoping to get some photos of the signage to go with the rest of the submission.

    I had a couple of questions:

    1. The PCN doesn't explicitly say whether the charge is for non-payment or an overstay. I note the BPA code (B5.1(f)) says that a PCN must state "why the parking ticket was issued".

    The closest it gets to this is in the "Parking charge information" section on the back:

    "By either not purchasing the appropriate parking time or by remaining in the car park for longer than permitted...(etc.)"

    Can this be used within an appeal point?

    2. The circumstances are (sorry, quite long, but I've adopted the "include every detail" method described elsewhere:

    On the day in question, the driver had a poorly 12-month-old baby in the car with them. The driver had left work early to pick up the child after receiving a call from the child’s nursery to inform them the child was unwell. Upon collecting the child, and unable to obtain an appointment with the family's GP at short notice, the driver took the decision to visit the NHS walk-in centre located opposite the car park managed by Parking Eye. The child, who had a temperature and was very congested, had been distressed, restless and crying throughout the drive from the nursery to the walk-in-centre. By the time the driver arrived at the location, they were distracted by the child’s discomfort. The driver entered the car park, entered a space, and spent several minutes soothing the child. Upon realising the car park was a pay and display, the driver found they did not have change. The driver left the car park on foot with the child in an attempt to find a cashpoint, in the hope of withdrawing cash and obtaining change from a nearby shop. This attempt, which ultimately failed, continued for some time before the driver returned to the car and moved to another location.

    I am planning to include the following appeal points:

    1. Insufficient grace period
    2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
    3. No evidence of Landowner Authority
    4. Inadequate signage
    5. The charge is a penalty and is not saved by ParkingEye v Beavis

    Would appreciate your advice.

    Many thanks.
Page 1
    • The Deep
    • By The Deep 12th Oct 17, 7:26 AM
    • 7,411 Posts
    • 6,458 Thanks
    The Deep
    • #2
    • 12th Oct 17, 7:26 AM
    • #2
    • 12th Oct 17, 7:26 AM
    How long were you there?
    You never know how far you can go until you go too far.
    • GeoffBungle
    • By GeoffBungle 12th Oct 17, 2:10 PM
    • 33 Posts
    • 22 Thanks
    GeoffBungle
    • #3
    • 12th Oct 17, 2:10 PM
    • #3
    • 12th Oct 17, 2:10 PM
    The driver/car was there for 19 minutes, according to ANPR.
    Last edited by GeoffBungle; 12-10-2017 at 2:16 PM.
    • GeoffBungle
    • By GeoffBungle 20th Oct 17, 1:38 PM
    • 33 Posts
    • 22 Thanks
    GeoffBungle
    • #4
    • 20th Oct 17, 1:38 PM
    • #4
    • 20th Oct 17, 1:38 PM
    Hi there,

    This is ready to check, if someone could be so kind? I've cobbled it together from other appeals and have added a few pictures with annotations.

    (sorry about the length again).

    GB.

    Dear POPLA,
    Parking Charge Notice - XXX
    POPLA Ref: XXX
    I am writing to you as the registered keeper of vehicle XXXX. I wish to contest the £100 Parking Charge Notice (PCN) issued by ParkingEye Ltd.

    To protect the driver, they have not been named.
    As the registered keeper, I wish to appeal the charge on the following points:

    1. Insufficient grace period
    2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
    3. No evidence of Landowner Authority
    4. Inadequate signage
    5. The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.


    Insufficient grace period

    On the day in question, the driver had a poorly 12-month-old baby in the car with them. The driver had left work early to pick up the child after receiving a call from the child’s nursery to inform them the child was unwell. Upon collecting the child, and unable to obtain an appointment with the family’s GP at short notice, the driver took the decision to visit the NHS walk-in centre located on Katie Road, which is opposite the car park managed by Parking Eye. The child, who had a temperature and was very congested, had been distressed, restless and crying throughout the drive from the nursery to the walk-in-centre. By the time the driver arrived at the location, they were distracted by the child’s discomfort when they pulled into the car park. The driver spent several minutes soothing the child. Upon realising the car park was a pay and display, the driver found they did not have change. The driver left the car park on foot with the child in an attempt to find a cashpoint, in the hope of withdrawing cash and obtaining change from a nearby shop. This attempt, which ultimately failed, continued for some time before the driver returned to the car and moved to another location.

    The BPA Code of Practice (13.2) states that parking operators "should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action."

    Kelvin Reynolds, Head of Public Affairs and Policy at BPA states that:

    ‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

    “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

    “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

    The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

    Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

    In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
    For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

    Taking this into account, the driver's ability to read the (limited) signage and react appropriately was limited by one of Mr Reynold's "various factors" - in this case a poorly child requiring attention.

    In this case there was nothing on the signs at the entrance or anywhere seen, that informed the driver that the timing could possibly start at the point of entry and it is noted that the 'exit' ANPR camera records the VRN only when at the very front/actually exiting onto the road, despite the fact this is a narrow road with many parked cars obscuring the view on either side.


    It is clear from all of the above that ParkingEye have failed to allow the mandatory MINIMUM “Observation” and “Grace" periods as set out in the BPA Code of Practice. Adequate time must be allowed and these would differ from site to site, allowing for the issues mentioned above.

    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. I am the appellant 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.

    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.''

    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 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 CoP 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

    4. 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

    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 was 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.

    Entrance:

    https://i.imgur.com/e8w5a7d.jpg

    https://i.imgur.com/q0zJh03.jpg

    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 shows the entrance road to the car park which the driver must navigate before reaching the spaces. Note the lack of signs
    https://i.imgur.com/0dZ8TJH.jpg

    No parking charge is mentioned on the list of tariff charges on the pay and display machines:

    https://i.imgur.com/yFq0RqS.jpg

    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.

    https://i.imgur.com/SUy1WYT.jpg
    https://i.imgur.com/sWZOr49.jpg

    ''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.''

    ''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.

    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.

    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.

    5. The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

    This would have been a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.
    Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.
    At 47 in the Court of Appeal Judgment, it was held: ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”
    And at the Supreme Court it was held at 14. ''...where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty...''
    At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''
    This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. 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.''Clearly a charge ‘out of all proportion’ to the tariff is an unfair penalty to the mind of any reasonable man. A huge charge arising is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.
    This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.This case is not comparable.


    Therefore, it is respectfully requested that this parking charge request appeal be upheld on every point.
    • Redx
    • By Redx 20th Oct 17, 2:28 PM
    • 16,895 Posts
    • 20,992 Thanks
    Redx
    • #5
    • 20th Oct 17, 2:28 PM
    • #5
    • 20th Oct 17, 2:28 PM
    ok , seems reasonable apart from the following

    1) you need to number each section same as the bullet point menu

    2) all the waffle about the poorly child (sorry for your troubles) wont cut it with popla, they dont allow for mitigation and it will all be ignored

    a popla appeal is based on legal arguments , not "circumstances" and I feel that your need to "tell the story" (common amongst most recipients of these charges) is clouding the issues

    its a legal argument that is being had here, not pulling at the heart strings

    personally I would remove it , leaving the legal argument about grace periods in and let the assessor decide
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • GeoffBungle
    • By GeoffBungle 20th Oct 17, 2:31 PM
    • 33 Posts
    • 22 Thanks
    GeoffBungle
    • #6
    • 20th Oct 17, 2:31 PM
    • #6
    • 20th Oct 17, 2:31 PM
    Thanks - I wasn't sure about that. Perhaps misinterpreted advice elsewhere to "lay it on thick" as to circumstances around the event. Thought it might help to explain the time between leaving and arriving.

    I'll trim it down.
    • Coupon-mad
    • By Coupon-mad 20th Oct 17, 2:42 PM
    • 51,673 Posts
    • 65,329 Thanks
    Coupon-mad
    • #7
    • 20th Oct 17, 2:42 PM
    • #7
    • 20th Oct 17, 2:42 PM
    Dunno, I might leave it all in because I think you might struggle with this one. So you do need to explain the efforts made to pay and display.
    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.

    • Redx
    • By Redx 20th Oct 17, 2:53 PM
    • 16,895 Posts
    • 20,992 Thanks
    Redx
    • #8
    • 20th Oct 17, 2:53 PM
    • #8
    • 20th Oct 17, 2:53 PM
    I agree , its a tricky one , due to popla rarely accepting the circumstances around any event

    they can only say no, besides which I hope one of the other stronger points may win
    Last edited by Redx; 20-10-2017 at 2:57 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • GeoffBungle
    • By GeoffBungle 20th Oct 17, 2:54 PM
    • 33 Posts
    • 22 Thanks
    GeoffBungle
    • #9
    • 20th Oct 17, 2:54 PM
    • #9
    • 20th Oct 17, 2:54 PM
    Thanks both - I've amended headings to reflect the numbers in the initial list. I can leave the waffle/full description of the circumstances (depending on your take) in there.

    If the worst case scenario is that it's ignored then it might as well stay.

    Is there any mileage in the point I made in my initial post? The PCN doesn't explicitly state whether the charge is for an overstay or non-payment, but rather takes a pre-fab template approach of 'either overstay or non-payment'?
    • Redx
    • By Redx 20th Oct 17, 2:58 PM
    • 16,895 Posts
    • 20,992 Thanks
    Redx
    yes , add that as a separate point and quote the BPA CoP as well as quoting the ambiguity wording on the pcn or NTK

    paperwork issues like this could sway it for you, plus its another point to add
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • GeoffBungle
    • By GeoffBungle 20th Oct 17, 4:11 PM
    • 33 Posts
    • 22 Thanks
    GeoffBungle
    I've added:

    6.The Notice to Keeper does not comply with the BPA Code of Conduct

    The British Parking Association (BPA) code of conduct states at 29.1 (f) (Issuing parking charge notices):

    “The parking charge notice must contain at least the following information, whatever the method of enforcement and how it is sent or delivered:

    “(f) why the parking charge notice was issued”

    The notice to keeper (NTK) sent to the driver does not specify whether the charge has been brought because of an overstay or is due to an issue with the purchase of a ticket.

    It states:

    “By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the parking charge is now payable to ParkingEye Ltd (as the creditor).”

    The recipient of the NTK is left to wonder exactly why the charge has been levied.

    The NTK in this case only tells the recipient that the car entered the car park and exited 19 minutes later. It does not state whether this 19 minute period constituted an overstay, or if the correct parking tariff was not paid.

    The NTK therefore, in alleging liability for the charge due to a “breach of the terms and conditions”, fails because it does not specify exactly how the operator believes they have been broken.

    It further fails to comply with the BPA code of practice under the following heading.

    20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.

    By failing to explicitly tell the keeper the exact basis for the “reasonable cause”, the operator has not satisfied this requirement of the code of conduct.
    • GeoffBungle
    • By GeoffBungle 24th Nov 17, 5:04 PM
    • 33 Posts
    • 22 Thanks
    GeoffBungle
    Boo.

    Don't feel like the assessor has considered anything I submitted in my rebuttal notes.

    Unsuccessful

    Assessor NameLouise Dack

    Assessor summary of operator case

    On 13 September 2017, vehicle XXXXXX was issued with a Parking Charge Notice (PCN). This PCN was issued due to the motorist failing to make a valid payment for their parking session.

    Assessor summary of your case

    The appellant has raised the following grounds of appeal: 1. Insufficient grace period 2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge. 3. No evidence of Landowner Authority 4. Inadequate signage 5. The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis. 6. The Notice to Keeper does not comply with the BPA Code of Conduct

    Assessor supporting rational for decision

    When entering private land where parking is permitted, you are entering into a contract with the operator by remaining on this land. The terms and conditions of this land should be displayed around this area. It is essential that these terms are adhered to in order to avoid a PCN; it is the responsibility of the motorist to ensure that this is the case. The terms and conditions shown on the photographic evidence provided by the operator state ‘’Parking tariffs apply 24 hours a day, 7 days a week…Motorists must enter their full, correct vehicle registration when using the payment machine…Failure to comply with the terms and conditions will result in a Parking Charge of: £100.’’ A PCN has been issued for the following reasons: the appellant has failed to make a valid payment for their parking session. The appellant says that there has been an insufficient grace period applied. They say that the driver had a poorly 12-month-old baby in the car with them. They say that the driver visited the NHS walk-in centre located opposite the car park managed by Parking Eye. The appellant says that the driver entered the car park, entered a space, and spent several minutes soothing the child. In addition, upon realising the car park was a pay and display, they say that the driver found they did not have change. Following this, they say that the driver left the car park on foot with the child in an attempt to find a cashpoint, in the hope of withdrawing cash and obtaining change from a nearby shop. However, after being unable to obtain cash, the appellant left the car park. The BPA Code of Practice section 13.1 states “your approach to car park management must allow a driver who enters your car park but decides not to park a reasonable period without having their vehicle issued with a PCN. Section 13.2 states “you should allow the driver a reasonable grace period in which to decide if they are to stay or go.” Both section 13.1 and 13.2 outline grace periods in the BPA Code of Practice for drivers to have time to read the terms and conditions of the site, and if they cannot agree to those terms, the driver has the time to leave the site without penalty. In the appellant’s appeal they state that they left their vehicle unattended on the car park whilst attempted to find a cash point to be able to pay for parking. I can conclude that the appellant had the opportunity to read the terms and conditions to decide if to remain on site leave. The appellant chose to leave their vehicle on the car park, therefore the appellant chose to park. The appellant was making use of the facilities provided by the operator and with the appellant choosing to remain on site for reasons other than understanding and accepting the terms, grace periods are not applicable. The operator says that the operator has not shown that the individual who it is pursuing is in fact liable for the charge. In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the Protection of Freedoms Act 2012 (PoFA 2012), as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the Notice to Keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. The appellant says that the operator does not have the authority from the landowner to issue PCNs on site. Within the operators case file they have provided a copy of written authorisation from the landowner. Having reviewed this I am satisfied it meets the requirements as laid out with Section 7 of the British Parking Associations Code of Practice and as such, I am satisfied the operator has authorisation from the landowner to operate on the land. The appellant says that the car park contains inadequate signage. In section 18.1 of the British Parking Association (BPA) Code of Practice it states “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be aware of from the start”. The operator has provided photographic evidence of the signage on site, including entrance signs which signpost the motorist to the full terms available within the car park. On looking at the evidence provided, I am satisfied that these terms have been displayed clearly and sufficiently and in compliance with the BPA Code of Practice. The appellant says that the charge is a penalty, breaches the Consumer Rights Act 2015 (CRA 2015). While CRA 2015 has not been considered by a court, its predecessor the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999 has been. For all intents and purposes, in relation to unfair terms, they are the same in substance. In ParkingEye-v-Beavis, the court considered whether an unpaid parking charge was (a) a penalty; and (b) unfair, according to UTCCR 1999. They concluded: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations”. Borrowing on this reasoning, we do not consider the charge is a penalty and we do not consider it unfair. The appellant says that the Notice to Keeper does not comply with the BPA Code of Practice as this fails to give the exact basis of reasonable cause. After reviewing the Notice to Keeper provided by the operator, I am satisfied that this identifies the reasoning for issue and is complaint with the BPA Code of Practice. The appellant says the parking charge received is unfair. 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.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the BPA Code of Practice. Within Section 18.1 of the 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.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act 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. The Act then moved on to define “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 independent assessment 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 is sufficient to bring the parking charge to the attention of the motorist. Therefore, 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. The car park is monitored by Automatic Number Plate Recognition (ANPR) this system has captured the appellant’s vehicle entering site at 15:11 and leaving at 15:31 after completing a parking session of 19 minutes. The operator has provided a copy of the Whitelist Lookup for the day of the parking contravention. This system shows a list of vehicle registration details entered upon making payment and I can confirm that the appellant’s details are not present. It is the responsibility of the motorist to familiarise themselves with the available signage on site and ensure that their parking complies with the applicable terms and conditions before leaving their vehicle unattended on site. In this instance, the appellant has failed to make a valid payment for their parking session and as a result they have breached the terms and conditions of the car park. As such, I can only conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.
    • Redx
    • By Redx 24th Nov 17, 5:23 PM
    • 16,895 Posts
    • 20,992 Thanks
    Redx
    possibly not , but I believe you were always on a sticky wicket with this saga because you failed to adhere to the site rules on a private car park. the driver had maybe 10 minutes maximum to either comply or leave the car park

    I appreciate there were varying reasons for this but as I said earlier POPLA wont consider mitigation and never have done , not in all the 5 years a popla system has operated

    if you still refuse to pay , in full, then be prepared for a court case (MCOL) within 6 years

    come back if you do receive an LBC or an MCOL in the post

    keep ALL paperwork

    the statute is 6 years for a court claim for an alleged debt
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • GeoffBungle
    • By GeoffBungle 24th Nov 17, 8:02 PM
    • 33 Posts
    • 22 Thanks
    GeoffBungle
    Will do.

    Thanks for all your help so far.
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