Help needed with POPLA appeal!

Pinacolada_2

I just added this section:

INVALID PARKING CHARGE NOTICE
Ethical Parking Management are a member of the British Parking Association (BPA), therefore their notice to keeper must meet the requirements of Schedule 4 of POFA 2012. Please see my parking charge notice, attached.
According to POFA 2012, the notice to keeper must:

"State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when"

There is not mention of this on my parking charge notice.

"Identify the “creditor” who is legally entitled to recover the parking charge"

Again, there is no mention of whether Ethical Parking Management is the creditor or not, and whether they are legally entitled to recover the parking charge.

"Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only)"

I have found this section on the notice to driver appeal section confusing and contradictory:
"Any driver appealing against a Parking Charge Notice within 14 days from the date of issue will be given the opportunity to provide payment at the reduced amount in the event that their appeal is unsuccessful. Not all parking areas have a reduced charge for early payment. You should be aware that any driver lodging an appeal later than 9 days from the date of issue will be liable for the full amount in the event that their appeal is unsuccessul."

The parking charge notice is incoherent with regard to payment dates and amounts. This is confusing for drivers. The parking charge notice does not meet the requirements of Schedule 4 of POFA 2012, therefore the parking charge notice is void and unenforceable.

Coupon-mad

Pinacolada wrote: »

I also have Obsessive Compulsive Disorder which qualifies as 'substantial' as it can take me hours to complete simple tasks such as washing myself and dressing myself in the morning. It is also long-term as I have had this condition for over 10 years. Shall I use my OCD as well as the clinical anxiety in my point about the Equality Act?

Yepyepyep, even more reason for the delay in considering your purchases, packing & paying. I will have a look at your appeal in a moment as we are preparing dinner right now...and 14yr old DS2 is about to set fire to the kitchen I think!

Pinacolada_2

Dear POPLA adjudicator,

POPLA appeal re: Ethical Parking Management ticket number 0000905810 POPLA code 2361683603

This is my appeal as I am the driver of this car (already admitted) but I am not legally liable for the parking charge. In addition, the vehicle was not improperly parked. As such, the parking 'charge' notice (ticket) also exceeded the appropriate amount.

SUMMARY OF INCIDENT: HARASSMENT OF AN EQUALITY ACT PROTECTED APPELLANT
I parked in the car park of the xxxxxx campus of the xxxxxx and displayed my scratch card parking permit on the dashboard. It was a very windy day, with strong winds coming from the sea. I shut the car door and left to enter the university building, satisfied that I had paid and displayed a valid scratch card parking ticket.
I was horrified to return to my car and find a ticket stuck to the windscreen. It would appear that the wind had blown the ticket from where I had placed it on the dashboard, and it had fallen. However, the ticket was still clearly visible when looking through the window of the driver’s side.

Ethical Parking Management sent me photographs of my car at the time of the ticket being issued. Please see the attached photographs. Ethical only sent me photographs of the windscreen and the passenger’s side of the car. I believe this is because the parking ticket was clearly visible through the driver’s side window. I could clearly see the date on the ticket when I looked in the window upon finding the parking charge notice.

I immediately appealed to Ethical Parking Management and sent a photograph of my valid parking ticket. I expected Ethical to repeal the parking charge notice, as I had correctly paid and displayed, and the ticket officer would have experienced how strong the wind was that day. In fact they ignored the details of the appeal, not considering my points properly or fairly. They put pressure on me to just pay up within 14 days or face the threat of an increased charge, and court action. They also discouraged me from appealing to POPLA by threatening that by applying to POPLA (a service which is free to motorists in the interest of public justice) I would incur further costs if unsuccessful.

The POPLA adjudicator should also be informed that I have suffered with clinical anxiety, Obsessive Compulsive Disorder and clinical depression for the last 15 years. My Obsessive Compulsive Disorder has a massive and debilitating impact on my daily life and my ability to perform basic tasks such as washing and dressing myself. The Equality Act 2010 states that you are considered disabled if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities. The nature of my disability means that my condition is directly worsened as a result of the stress and anxiety inflicted on me by Ethical Parking Management’s threats of large, unjustified fines and court action. If Ethical Parking Management does not cancel my parking charge notice - whatever the POPLA decision - they will also be in breach of the Equality Act 2010 (the Act) because my long-term debilitating condition means I am a protected person under the Act. It is unlawful to harass a disabled person and any alleged contractual terms & conditions are rendered null and void, if the effect is to breach disability legislation by harassment.

Ethical must cease and desist with this harassment now that they know about my protected condition and it is my belief that POPLA cannot uphold this 'charge' under these circumstances as it would be enabling direct discrimination.


OTHER POINTS AGAINST AND IN RELATION TO THIS CHARGE
In case the adjudicator requires more information as to why this parking charge should not be paid - I have researched the matter and would like to point out the following:

UNCLEAR AND NON-COMPLIANT SIGNAGE
Due to their bright colours, distracting pictograms and the barely legible size of the small print, the signs in this car park are very hard to read and understand. There was no mention on the signage that parking tickets must be affixed to the dashboard in order to be considered correctly displayed.
I contend that the signs and any core parking terms Ethical Parking Management are relying upon were too small for any driver to see, read or understand when driving into the car park. I request that POPLA should check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
Ethical Parking Management do not own this car park and are acting merely as agents for the owner or legal occupier. In their Notice and in the rejection letters, Ethical Parking Management have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
I am not liable as Ethical Parking Management do not have proprietorship in the land and have not demonstrated to me that they are contracted to charge for the land. The Operator is a member of the British Parking Association, and the BPA Code of Practice states, in section 7.1, that the Operator must have written authority from the landowner to recover parking charges, including pursuing through court action. The Appellant puts the Operator to strict proof that they have the necessary authorisation at the location.
“7.1 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 you have the authority to pursue outstanding parking charges, through the courts if necessary.”
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012).

I would require POPLA to please check whether Ethical Parking Management have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.


NO CONTRACT WITH THE DRIVER AND UNFAIR TERMS
There is no contract between Ethical Parking Management and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

It is unfair for Ethical Parking Management to fine me for allegedly not displaying the ticket correctly, when the ticket was clearly visible through the driver’s side window. There were no instructions on the signage stating that parking tickets must be affixed to the dashboard in order to be correctly displayed. This would seem to me to be a clear breach of the Consumer Protection from Unfair Trading Regulations 2008.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
There was no contract between the driver and Ethical Parking Management. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

As there was no contract, then at most I was guilty of a civil trespass. This is stated in the BPA Code of Practice: “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are."
If I am guilty of a civil trespass, I may be liable to damages. Given that no ‘damage’ was done to the road, that the road was not blocked when the driver stopped or when the driver left, and that there were plenty of other free spaces for other drivers to park in (therefore the driver did not withhold a space from another paying member of the public) there was in fact no loss at all. I argue that the parking charge does not reflect the operator’s loss, and so is not enforceable.
Ethical Parking Management are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice as they suggest my emergency constituted a breach of contract. As such, they must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'.

Since I paid and displayed and no damage was caused, there can have been no loss arising from this incident. Neither can Ethical Parking Management lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.
The Operator states, in their letter of rejection, that the parking charge represents a contractual breach. Under established contract law, a party can only claim for their actual, or pre-estimated losses arising directly from a breach of contract. The Operator has not supplied any evidence or breakdown of such losses, which, the Appellant submits, would in reality be a vanishingly small sum, and nowhere near the amount demanded by the Operator.
The charge Ethical Parking Management is imposing is punitive and therefore void (i.e. unenforceable). The £80 charge is arbitrary and disproportionate to any alleged breach of contract or trespass.
UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at dressing up an unlawful penalty to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

INVALID PARKING CHARGE NOTICE
Ethical Parking Management are a member of the British Parking Association (BPA), therefore their notice to keeper must meet the requirements of Schedule 4 of POFA 2012. Please see my parking charge notice, attached.
According to POFA 2012, the notice to keeper must:

"State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when"

There is not mention of this on my parking charge notice.

"Identify the “creditor” who is legally entitled to recover the parking charge"

Again, there is no mention of whether Ethical Parking Management is the creditor or not, and whether they are legally entitled to recover the parking charge.

"Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only)"

I have found this section on the notice to driver appeal section confusing and contradictory:
"Any driver appealing against a Parking Charge Notice within 14 days from the date of issue will be given the opportunity to provide payment at the reduced amount in the event that their appeal is unsuccessful. Not all parking areas have a reduced charge for early payment. You should be aware that any driver lodging an appeal later than 9 days from the date of issue will be liable for the full amount in the event that their appeal is unsuccessul."

The parking charge notice is incoherent with regard to payment dates and amounts. This is confusing for drivers. The parking charge notice does not meet the requirements of Schedule 4 of POFA 2012, therefore the parking charge notice is void and unenforceable.

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

It is unfair and punitive and, as such, I respectfully request that this appeal be allowed.




Signed:

Dated:

Coupon-mad

I think Ethical Parking Management is a classic oxymoron and would love to have brought that into a sentence in the appeal to make the POPLA adjudicator chuckle!

So, re the POPLA appeal:

I am always concerned about the Equality Act issues being dismissed by POPLA as mitigation (which they are not, the Equality Act being the law of course). So I suggest adding a bit to this sentence:


Ethical must cease and desist with this harassment now that they know about my protected condition and it is my belief that POPLA cannot uphold this 'charge' under these circumstances as it would be enabling direct discrimination. POPLA adjudicator please note this is not a case of mitigation, this is primary disability law being breached.


And here's some more to add to the signage issue and remove the 'bright colours & pictograms' bit as that was written re Excel's pretty signs!

''UNCLEAR AND NON-COMPLIANT SIGNAGE
[STRIKE]Due to their bright colours, distracting pictograms and the [/STRIKE][STRIKE]barely legible size of the small print,[/STRIKE]

The signs in this car park are very hard to see from a driver's position in a car - let alone read and understand - due to the barely legible size of the small print. There was no mention on the signage that parking tickets must be affixed to the dashboard in order to be considered correctly displayed. There was no mention that a ticket has to be 'continuously displayed' and the truth is that I had properly displayed my ticket when parking and even after is must have slipped it was still visible and readable through the window - which means there was no breach of any term.

Because the signs fail to properly inform drivers of the full terms & conditions at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

The BPA Operational Requirements Section 18.2 states:
''Entrance signs must follow some minimum general principles and be in standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance.''

The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.

And the BPA Code of Practice re signage 'Contrast and illumination':
There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision.”

I believe the signs and any core parking terms Ethical are relying upon were unclear in all respects. They need to show POPLA their evidence and signage map/photos which they might contend meet all the requirements I have listed above.

In addition, to suggest a breach of contract, Ethical needs to prove that the driver actually saw, read and that there was acceptance of the terms, which they cannot do as it is clearly untrue. It seems that I and the POPLA adjudicator are being led to believe that I must have made a conscious decision to park in exchange for paying the extortionate fixed amount the Operator is now demanding, even though I had paid and displayed in good faith and there was no money owing. This contention is categorically denied. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

The truth is that the I did not accept these punitive terms even though (as in Mendelssohn v Normand Ltd., cited above) this car park was familiar to me - and so there was never any fair enforceable contract formed that I could have breached. Ethical may claim that generic signage is displayed around the car park but this does not meet the BPA Code of Practice rules, nor is it prominent nor have any clear term creating any 'contravention' for (specifically) not continuously displaying my ticket on the dashboard after I had left the car.



I think the rest is fine and just make sure you attach the whole text to your POPLA email.

Orrin

The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.

Which version is this as I can't find it in any of the BPA docs that I have?

Pinacolada_2

Orrin wrote: »

Which version is this as I can't find it in any of the BPA docs that I have?

Um I got this from another of Coupon-Mad's appeals! Sorry not to be much help.

Pinacolada_2

Coupon-Mad - thank you so, so, so, so much!! And to everyone else who has helped, a big, massive thank you! Fingers crossed for a successful outcome!

Guys_Dad

Pinacolada wrote: »

Oh, I was planning to send it by email as an attachment, it says you can send it by email on the POPLA form. I don't have time now to send by post

There is sufficient evidence on here that POPLA's online system can't handle long appeals and you lose a chunk from the end.

By all means, send in your appeal online and I would start by saying that you are aware of their online problem and will be sending a surface mail copy as well in case your online version gets truncated.

However, it's your appeal and you must do what you think best, but look at post#94 and the nest half dozen here https://forums.moneysavingexpert.com/discussion/4488337

Pinacolada_2

Just an update - the POPLA appeal is still ongoing. I was initially told the decision would be made on 19th September. Didn't hear anything until a few days ago when Ethical sent me their representations. I used to work for a different type of Tribunal and think that I should have been notified that a) the paper determination of the decision was put back from 19th September and b) that Ethical were given an extension of time to submit their evidence. I heard nothing.

In any case, I've finally managed to get my employer (the land owner) to cancel the ticket - they have contacted Ethical who say they cannot now cancel it as it is 'in POPLA's hands'. I've spoken to POPLA who say that if my employer writes to them to say the ticket has been cancelled, they will cancel the appeal. However I feel it is risky to cancel my appeal, as Ethical may ignore my employer's email as it has now gone too far? Although I now have emails from the person in charge of the parking tickets at my work, saying that she will cancel the ticket with Ethical. Do you think this email is evidence that I do not have to pay Ethical, if they were to continue to chase me after a POPLA decision (I'm assuming I will lose at POPLA). Thanks

Umkomaas

The Principal's decision (the contractor) trumps any view Ethical (the contractee) has on the matter. Get the landowner to confirm the cancellation to POPLA, Ethical, and copy to you, then forget it.

Word Key:

Contractor - 'Organ grinder
Contractee - 'Monkey'