CP Plus MSA - Popla appeal rejected

bunzee

Hi all,

Received my decision from Popla yesterday rejecting my appeal... I used the recommended text in the sticky for my appeal (with some tweaks for my own case) but unfortunately had no joy

Do I pay up now or is there anything else I can do?

All help much appreciated!

bazster

Frankly I don't believe it. Please post up your appeal and the adjudicator's decision.

bunzee

My appeal:

Dear Sir/Madam,
POPLA Code:
Vehicle Reg:
PPC: CP PLUS
PCN Ref: 0451140417034
Alleged Contravention Date & Time: 17th April 2014 from 16:58 to 20:57
Date of PCN: 28/04/2014

On 28th April I was sent a charge notice from CP PLUS requiring payment of a charge of £100 for the alleged parking contravention.
I would like to appeal this notice on the following grounds:

1 Signage
2 Lack of the PPC's proprietary interest in the land and no contract with the landowner
3 No Genuine Pre-estimate of Loss


1 Signage

The BPA Code of Practice states:

“18.1 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.

18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. 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.”

When the driver arrived on the service area no signage was seen warning users of the motorway services that a £100 charge would be imposed if they remained on the service area in excess of two hours.

There was no contract between the driver and CP Plus. The driver did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

Had the driver been made aware that CP Plus would charge £100 if they stayed more than two hours the driver would have ensured the vehicle left the service area within two hours.

Any signage was either non-existent or inadequate.

Also, as this was a Motorway Services Area, which is specifically designed for drivers to rest. Operators of Motorway Services Areas (MSAs) and their agents must comply with the requirements of Government policy. These provisions are reflected in the Traffic Signs Agreements into which they enter with the Highways Agency.

The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

''Signing within roadside facilities
100. All traffic signs and markings within roadside facilities should conform to the standards laid down in the TSRGD 2002 as amended or replaced from time to time.''

I require CP Plus to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for CP Plus's 'traffic signs' in this particular MSA, to be exempt from this policy requirement. It will not be enough for CP Plus to claim that their particular signs placed in this MSA are in CP Plus’s own opinion, not 'traffic signs' when clearly they can indeed be interpreted as such and - unlike other adverts and signs on site - are not intended to direct pedestrians.

I put CP Plus to strict proof to provide evidence of date of erection of all signage and proof of compliance of that signage with the standards laid down in the TSRGD 2002 and with BPA Code of Practice and BSI Standards.

As CP Plus are arguing the driver entered into a legal contract with them based ENTIRELY on signage. I put CP Plus to strict proof to provide POPLA with an unredacted, contemporaneous copy of their evidence that each sign was clearly viewable from the position of a driver and to provide mapping of the signage.

I therefore respectfully request that my appeal is upheld and the charge dismissed.


2. Lack of the PPC's proprietary interest in the land and no contract with the landowner.

I believe that CP Plus have no proprietary interest in the land to issue charges and pursue them in their own name, including at court level. If they do have such interest then I put them to strict proof to provide POPLA with the Deeds of Title in the land.

In the absence of such title, CP Plus must have contractual authority from the landowner to issue and pursue charges. I do not believe such a document is in existence.

I therefore put CP Plus to strict proof to provide POPLA with an unredacted, contemporaneous copy of the contract between them and the landowner which provides them with the authority to issue and pursue charges, including to pursue them at court in their own name. Please note that a 'Witness Statement' to the effect that a contract is in place between CP Plus and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.


3. Punitive/unfair/unreasonable charge. No Genuine Pre-Estimate of Loss.

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

In this case, CP Plus has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that CP Plus has suffered no loss whatsoever in this case.

Even if there was a contract (which is denied), the £100 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. By my car staying on the service area for the additional time during a quiet period when the car park spaces were not in peak demand there has been no loss to the landowner.

I put CP Plus to strict proof to provide POPLA with a ‘Genuine Pre-estimate of Loss’ incurred due to my vehicle remaining on their service area for the time stated.

This is therefore an unenforceable penalty and I respectfully request that my appeal is upheld and the charge dismissed.
I look forward to hearing your views on this matter.

Yours faithfully

bunzee

Popla response:

The Operator issued parking charge notice number 451140417034 arising out of the presence at MOTO Exeter, on 17 April 2014, of a vehicle with registration mark XX.
The Appellant appealed against liability for the parking charge.
The Assessor considered the evidence of both parties and determined
that the appeal be refused.
The Assessor’s reasons are as set out.
In order to avoid any further action by the operator, payment of the £100 parking charge should be made within 14 days.
Details of how to pay will appear on previous correspondence from the operator.

Reasons for the Assessor’s Determination
It is the Operator’s case that the parking charge notice was issued for exceeding the free period of parking without making payment for additional parking time. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.
The Appellant does not dispute that he overstayed without making payment for additional parking.
It is the Appellant’s case that:
a) Signage was inadequate so no contract was made with the driver,
b) The Operator lacks proprietary interest in the land in question and has no contract with the landowner and,
c) Thechargesoughtisnotagenuinepre-estimateofloss.
Firstly, the Operator is seeking to rely on a contract between itself and the Appellant that the Appellant would abide by the terms of parking or face liability for a parking charge. For such a term to be included in the agreement, it must be ‘incorporated’ into the agreement. The only relevant method of incorporation, in this case, is by notice. This means that the Appellant must have been made aware of the term, before the agreement was made, in order for it to be deemed part of the agreement. The Appellant will be deemed to have been made aware of the term if the Operator had taken reasonable steps to bring the term to the Appellant’s attention. The usual method by which an Operator takes ‘reasonable steps’ is by displaying clear signs around the site advertising the terms of parking.
As the Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear. The Appellant also mentions a Department for Transport policy and asks that the Operator provides evidence that they adhere to this.
The Operator has produced a site map showing locations of signage throughout the site and photographs of signage displayed which appear to demonstrate that the terms of parking were clearly displayed throughout the car park. Consequently, I find that the Operator has demonstrated that it took reasonable steps to bring the terms of parking to the attention of the Appellant. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he observes and abides by clearly displayed conditions.
Secondly, the Appellant questions the Operator’s authority over the land in question.
Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an Appellant in an appeal, then the Operator should address it by producing such evidence as it believes refutes a submission that it has no authority.
The Operator has produced a witness statement to demonstrate that it has the authority of the land-owner to issue parking charge notices at this site. Although the Appellant submits they believe a witness statement will not suffice, I am not minded to accept this and find the witness statement provided is sufficient for the issue at hand.
Lastly, the Appellant has submitted that the parking charge does not represent a genuine pre-estimate of the Operator’s loss, and so is not enforceable.
There is no dispute that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.
The Operator has responded by stating that the charge is a genuine pre- estimate of loss. The Operator has provided a table showing the losses they have incurred as a result of the Appellant’s breach.
I find that the table does reflect losses incurred as a result of the breach. Moreover, I find that the losses are a consequential losses flowing from the initial loss caused to the Operator. The initial loss incurred by the landowner was the £12 parking tariff which the appellant did not purchase when overstaying the free period.
Considering carefully, all the evidence before me, I find that the Operator has shown that the amount of the parking charge represents a genuine pre- estimate of loss. Therefore I find that the amount of the parking charge does not exceed the cost to the landowner.
On this occasion, I am minded to accept that the Operator has demonstrated that the charge represents a genuine estimate of the loss which was caused by the Appellant breaching the terms of parking. A pre- estimate need not reflect the loss which is actually caused by the breach, but must be a genuine attempt to estimate the loss which could be caused. In this case it appears that the driver parking in breach of the terms has caused a loss of £99.88 and so a parking charge of £100 represents a genuine attempt to estimate the loss which may be caused by the Appellant parking in this way.
Consequently I find that the Operator has produced sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss, they have the authority to issue and pursue parking charge notices on this site and that signage was adequate.
I find that, by failing to purchase the appropriate parking time, the Appellant became liable for a parking charge notice in accordance with the terms of parking displayed.
Accordingly, I refuse the appeal.
Marina Kapour
Assessor

Guys_Dad

This flies in direct contravention of previous POPLA decisions and is worrying.

If you go to the POPLA Decisions thread , which, unfortunately has been hidden in the stickies (BAD DECISION THAT SHOULD BE OVERTURNED), and search on "motorway" you will find a number of winning appeals - from this year.

Now, either the PPC has got a winning breakdown of loss (that should have been sent to you ) or the assessor has got it wrong.

Their statement ". A pre- estimate need not reflect the loss which is actually caused by the breach, but must be a genuine attempt to estimate the loss which could be caused. " should now be referred back to the chief assessor immediately as it completely contradicts other assessors.

Hopefully another contributor can help you with an appeal (I am out now for 24 hours) as this needs nipping in the bud.

bazster

Can you post up their "table of losses" please.

bunzee

Guys_Dad

Caution.

I am now a bit concerned by this.

Here are two excerpts - the first from the assessment above, the second from POPLA's recent annual report.

1. "A pre- estimate need not reflect the loss which is actually caused by the breach, but must be a genuine attempt to estimate the loss which could be caused. In this case it appears that the driver parking in breach of the terms has caused a loss of £99.88 and so a parking charge of £100 represents a genuine attempt to estimate the loss which may be caused by the Appellant parking in this way."


2. "However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

Is this a change of direction coming from POPLA or an assessor misinterpreting the chief assessor's statement.

Redx

most of that table of losses relates to dealing with the pcn once issued, not the gpeol to the actual landowner

I also notice they have relied on a "witness statement" too

gertysingh

FYI:
1. CP+ have just changed their method and it needs to be highlighted to the assessor what costs are actually operative costs.
2. Photos of signage by the appellant needs to be taken to add as evidence of non compliance.

Guys_Dad

Redx wrote: »

most of that table of losses relates to dealing with the pcn once issued, not the gpeol to the actual landowner

I also notice they have relied on a "witness statement" too

Agreed. This needs an immediate appeal to the chief assessor, referring him to his annual statement and how his juniors are interpreting it.

Probably best done by any regular who has an avenue of communication or is known as bona fide to him.