POPLA Refuse Appeal - Any thoughts

3putt

Hi there. Recently received notification that POPLA refused my appeal against Civil Enforcement Ltd.

Appeal Case:

Dear POPLA
In hereby present my grounds for appeal. Civil Enforcement Ltd (CEL) amazingly do not recognise me as being a genuine authorised vehicle despite clear written correspondence provided to them by the Hotel. I am the driver of this vehicle but I am not in breach of any terms and conditions of the parking as alleged. These spurious claims have been answered by the above mentioned correspondence and provided to CEL by myself and the landowner.
Sadly, I have therefore been forced to gather evidence, take legal advice and appeal the decision because Civil Enforcement Ltd have failed to follow the BPA code of practise in this case. Namely:

• 1) The operator has demonstrated no authority to levy charges.
• 2) The Penalty Charge is unlawful.
• 3) No standing/authority to form contracts with motorists.
• 4) No Creditor identified on the Notice to Appellant.
• 5) The penalty is excessive, punitive and does not represent a genuine pre-estimate of loss.
• 6) The signage at the Car park is insufficient & non BPA Compliant
• 7) The ANPR system and associated vehicle authorisation system is unreliable.
• 8) The operator has been deliberately obstructive.

1) - The operator has demonstrated no authority to levy charges.


Since CEL refuse to accept the written confirmation from the land owners themselves (Holiday Inn Hotel), I politely requested (by telephone) a copy of the contract in place between the operator and the landowner giving them authority to issue charge notices at this location. Surely any such contract will have a clause relating to “genuine authorised vehicles” that the landowner validates. This request has been ignored, forcing me to conclude that the operator has no authority on which to issue this charge notice and the charge is therefore void.
I therefore demand that the operator produce to POPLA a copy of the contract between themselves and the landowner (signed & dated contract with the landowner) and request that POPLA carefully scrutinise this contract to ensure that it meets BPA guidelines and gives proper legal authority to issue charge notices at this location. I also request POPLA to scrutinise any clauses in that contract relating to genuine authorised vehicles when they are confirmed in writing by the land owner. As such I require the fully signed contract and not witness statements so that POPLA are able to scrutinise the full extent of any authority to charge genuine authorised vehicles to park.
2) - Unlawful Penalty Charge

Since the land owner can verify I was a genuine Hotel guest and as such my vehicle was an authorised vehicle clearly there is no breach of contract. Therefore it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of parking in this car park.
Rather than stating the letter as an invoice or request for monies, the operator chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be seen as an official Police or Council parking fine. Likewise with the bold red text suggesting my details will be forwarded onto a “Debt Recovery Agency” in attempt to intimidate and scare any recipient into making payment.
I believe this to be 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).



3) - No standing/authority to form contracts with motorists.
As this operator has no proprietary interest in the land, I do not believe they have 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. I contend that they merely hold a bare licence to supply and maintain signage and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers.
I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."
In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

I put CEL to strict proof to provide to POPLA a genuine copy of the contract which - to demonstrate standing and authority - must specifically state that CEL can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name.
A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows CEL to charge £100 for this particular contravention if the contract is not produced?

Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that CEL can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.


4) - No Creditor identified on the Notice to Appellant.
Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Parking Charge Notice has indicated that the operator requires a payment to Civil Enforcement Ltd, there is no specific identification of the Creditor who may, in law, be CIL or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not.


5) - The penalty is excessive, punitive and does not represent a genuine pre-estimate of loss.

I was also told in the CEL appeal rejection letter that “The car park has experienced severe problems with unauthorised vehicles parking, resulting in vehicles being parked for long periods of time and occupying valuable space”. My vehicle was authorised as proven and it spent less than 2 hours in a virtually empty car-park whilst generating revenue for the Hotel as a genuine guest.
Under the Unfair Terms in Consumer Contracts Regulations 1999, it is unfair to impose breach of contract penalties which are vastly disproportionate to the costs to the supplier. This is further reinforced by sections 19.5 and 19.6 of the BPA code of practice. 19.5 of the code of practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”
In this case, the operator is attempting to charge £100 for an authorised stay of less than 2 hours in a car park that was virtually empty at the time of the visit. My visit generated significant direct income to the Hotel and as such has not impacted the Hotel negatively in any way.
I refer to: VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjucation. 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 charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local charges for circa 2 hour parking, where proven receipts (as in this case) would mean FREE parking in any case. I require CEL to provide POPLA a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.



6) – The signage at the Car Park is non BPA compliant
You will see from the attached photos that accompany this letter (mentioned in the below examples and taken on 1/2/15), the signage at this car park is inadequate and non BPA compliant:
The Entrance Sign. There is one main sign at the entrance to the car park referring to “See Car Parks Signs for Details” (SEE MY PHOTO – “Highway Entrance to Hotel”) . BPA Code of Practice part 18.5 states users must have the chance to read the terms & conditions before deciding to enter a contract. You will see from the above mentioned photos that this entry sign is positioned just feet from a 90 degree entrance bend off the highway making it very likely that a driver will pass it without even noticing it. Especially as it is positioned on the left hand side, on a Drivers “Blind side” of the windscreen, blocked by the windscreen pillar.



The Terms & Conditions Sign. Beneath the above mentioned entrance sign is a yellow “Specific parking-terms signs” (SEE MY PHOTO – “Tiny Details Notice”) that sign has writing so small, that even in the close up photo, you can barely make it out. Viewing that detail from a distance inside a vehicle is impossible. There are other signs like this in the car park but not everywhere with many places free of any signs (see below example). Given these signs are all the same size they are therefore non compliant with BPA Code of Practice part 18.10.
Sign Positioning & Size. BPA Code of Practice part 18.4 states that signage showing detailed terms & conditions of parking should have at least one dimension no less than 450mm. As you can see in PHOTO “ Signage Sizing”, this sign measures 420mm in Width. All these yellow terms & conditions signs have been checked and all are exactly the same size. Coupled with the miniscule text, makes these signs very difficult to read and therefore non compliant.
Different signs. In other parts of the Car Park there is a different type of sign. (SEE MY PHOTO “Tall Signs”) These signs have a text saying “these terms apply 24 hrs a day” but do not refer to any detailed terms or conditions. They are also extremely high off the ground (approx 9 feet) as you can see with the white vehicle beneath it. They also contain very small text making them hard to view. Without any mention or link to the specific parking-terms, the terms & conditions of parking are ambiguous and therefore non-compliant.
Inadequate signage. Once past the main entry sign you may then (as one example) park in any of the bays immediately in front of you & several round the corner (SEE MY PHOTOS “Parking Bays at Front” and “Further Parking Bays”) without seeing one sign in your line of vision. If you then proceed to head for Hotel Reception from these Parking Bays at the front of the car park, all the way along the safe pedestrian route that runs parallel to the Hotel (SEE MY PHOTOS – “Pedestrian Route to Reception” , “Further path to Reception” & “Arrival at Reception”) There is not one single Parking Sign. Nothing attached to the Hotel walls along your route and Not one sign on the Hotel Doors in front of you. CEL state on their small yellow signs that one of their main terms and conditions relates to car park users using a terminal in reception (whereby the driver is required to enter their vehicle registration), but having no signage to indicate this all the way along a 100m main pedestrian route and not even on the facing doors does not comply with the requirements of the BPA Code of Practice part 18.2 & 18.3.
Also, If you happen to know where you are heading once inside the Hotel (meeting rooms, function, event, restaurant etc ) AND do not have to pass Hotel Reception then it’s highly likely that you can enter the hotel without being aware of any of the car park terms and conditions and hence not compliant with BPA Code of Practice part 18.3.
In addition: None of the signage appears to be lit despite this car park being a 24hour car park .
I have also been informed by Hotel management that recent signage has been added and that further signage is planned because many genuine guests of the hotel are being plagued with invoices for £100 parking charges.


7) - The ANPR system and associated vehicle authorisation system is unreliable.
The fact that the Hotel itself could immediately validate that my vehicle was a genuine authorised vehicle parking on site brings into question that the ANPR system and associated vehicle authorisation system is unreliable. This charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times, but this is not in question.
I put CEL to strict proof to POPLA to provide evidence of checks and maintenance of the cameras and the VRM entry systems. The Operator's proof must show checks relating to the timing of my case/my vehicle, and not vague statements about any maintenance & calibration checks carried out at other times.
I also put CEL to strict proof to provide to POPLA any evidence that all equipment in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code.


8) - The operator has been deliberately obstructive.
Throughout the appeal process, the operator has been deliberately obstructive towards my attempts to make a successful appeal. I made every reasonable effort to demonstrate to the car park operator that I was a genuine authorised vehicle, providing clear written evidence from the Hotel management. I also requested by phone that operator provide a copy of the contract in place between the operator and the landowner giving them authority to issue charge notices to proven Hotel users at this location. Nothing was provided, but instead I was simply told that my appeal had been rejected.
Management from the Holiday Inn Hotel have tried to get this Invoice cancelled but because the contract with Civil Enforcement Limited is coming to an end, it would appear that CEL refuse to listen to all polite requests from the Hotel and refuse to recognise their authority as the land owner.
Given these grounds, I respectfully request that my appeal is upheld by POPLA and the charge dismissed. I thank you for taking the time to review this genuine appeal.


POPLA Decision Received:

It is not in dispute that the appellant parked at the site and received a parking charge notice after the operator’s ANPR system detected the vehicle leaving the site when there was no record of the vehicle on the record of vehicle permitted to park at the site without paying £100.
The appellant made representations, stating that they were a customer of the hotel, so were entitled to park at the site for free. They also stated that the detailed terms of parking were displayed on signage too narrow to comply with the BPA code.
The operator rejected these representations, denying being responsible for the signs the appellant complained about, and stating that it was clearly signed that users of the car park who did not register at the touch screen in the hotel must pay £100.
Considering all the evidence before me, I find that, using the appellant’s photographic evidence, and disregarding the yellow signs the operator claims were not theirs (it is not necessary for me to make findings about the truth of this statement), it is clear that the signage at the site was sufficient to make it clear to the ordinarily observant motorist in the appellant’s position that the car park was for permit holders only and that there were further terms and conditions within the car park. This would cause the reasonable motorist to search for and discover the signage setting out the full terms of parking (what the appellant calls the high signs), which, as their existence was made clear by other signs, cannot be considered to high to be sufficiently clear. As it appears not to be in dispute that the appellant did not obtain a permit at reception as required, I must find that the appellant breached terms of parking which they were bound by, so must find that the charge notice was validly issued. The fact that some of the signs at the site were not compliant with the BPA code does not affect my decision, as I disregarded those signs when making it.
Accordingly, I refuse the appeal.

I've since made a complaint to POPLA on the basis that:

[FONT=&quot]The assessors determination in this case is severely lacking on many grounds, including:[/FONT]
[FONT=&quot] [/FONT]
· [FONT=&quot]The POPLA Assessor has only examined ONE of 8 grounds of appeal – The signage, with many questionable issues around this.[/FONT]
· [FONT=&quot]The POPLA Assessor has incorrectly stated that the appellant did not attempt to obtain a permit at reception. This is the reason that maintenance evidence was requested about this terminal in question.[/FONT]
· [FONT=&quot]The POPLA Assessor incorrectly interpreted operator evidence. NOT ONE of the signs erected by the operator mentions “that users of the car park who did not register at the touch screen in the hotel must pay £100” This is ONLY mentioned on non-BPA compliant yellow signs that the operator claims are not theirs.[/FONT]
· [FONT=&quot]The POPLA Assessor has clearly stated that in his determination he disregards non-BPA compliant signage? He suggests that Car Park Operators, on the sites they manage, can allow non-BPA compliant signage to be erected by claiming they have no knowledge of it and hence no responsibility for it.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I hereby request that POPLA review these genuine points in question. All of which along with the many others will form a legal appeal via the courts if necessary.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Thoughts on next steps anyone?[/FONT]
[FONT=&quot]Thank you....[/FONT]
[FONT=&quot]3Putt
[/FONT]

Cygnus_Alpha

Can you name the popla assessor please?

Jim_AFCB

They made no comment at all on GPEOL.

AS this is the point almost certain to get a win at POPLA, I would always put it as the first point.
They obviously didnt read your appeal properly,

ManxRed

Was this a cut and paste job on their website and it's truncated the appeal so points 2 onwards weren't received?

Probably not, but just a thought.

Guys_Dad

This is always the problem with a "War & Peace" length appeal. The POPLA assessor can miss the vital points, as they appear to have done here.

Start with GPEOL ( caveat being the Beavis Appeal result) State that this is you main appeal point and, only if this fails, you would like the other points taken into account.

As already asked, who is the assessor? This will be helpful to us. You then need to make a demand for reconsideration to the chief adjudicator as the assessor has NOT dealt with your GPEOL point. Neither have they dealt with your point about having a valid contract - unless the PPC sent that in as part of their bundle.

But as a warning to others - the long appeal can get truncated and, frankly, is not necessary and can submerge the main appeal points, as well as being boring for an assessor to read.

3putt

Thank you to all that responded. The assessors name was a Mr Monk. Yes very disappointed only one of my 8 points was responded too. Especially nothing regarding the GPEOL. I've since sent a complaint off to Mr Reeve. Does anyone have any experience on POPLA handling complaints?

Ralph-y

Have you looked at ManxReds post above?

Ralph:cool:

3putt

Hi Ralph-y, yes I did see Manxreds post, but forgot to reply to that in my previous post (apologies). The appeal detail went off to POPLA as an email attachment, and because they have responded to the signage point (which was my point 6) I just assumed they received the full list OK.

GPEOL was not even considered as I mentioned, but also [FONT=&quot][FONT=&quot]t[/FONT]he POPLA Assessor has clearly stated that in his determination he disregards non-BPA compliant signage? [FONT=&quot]Which[/FONT] suggests that Car Park Operators, on the sites they manage, can allow non-BPA compliant signage to be erected by claiming they have no knowledge of it and hence no responsibility for it.[/FONT]

I've since discovered that the Hotel management erected the additional non-compliant signage as they felt the signage that the operator erected was insufficient and too many genuine guests were getting parking invoices. Also I have been informed that the Hotel has since ended their contract with this operator due to their aggressive stance & zero tolerance towards genuine paying guests.