Crawley Leisure Park Parking Charge

Juan_Sebastien_Lopez

Hi. I've read the newbies thread as suggested, but I fear that after taking my own initial appeal action without seeing this forum, I may have made life more difficult for myself.

Your advice would be greatly appreciated...

My problem:

Parked at Crawley Leisure park to go to cinema. Torrential rain, packed car park, darkness of night, but with street lighting illumination in car park. Vehicle was parked at the end of a row of parking bays next to a kerb. Vehicle caused no obstruction whatsoever and was genuinely believed to be sensibly and reasonably parked. Emergency vehicles could easily pass. Came out of cinema to find £100 parking charge notice attahced to windscreen for the following 'breach of terms and conditions of parking' - "Not parked correctly within the markings of the bay or space".

Car park notice issued by UKPC member of BPA.

Have used UKPC online appeal process stating the following:


The vehicle was parked in a location where there were no road markings to indicate that that parking was prohibited in that area.

There were no solid white lines, single or double yellow lines present.

The vehicle did not cause any obstruction or manoeuvring difficulty whatsoever to any other users of the car park.

When the vehicle was parked, it was dark outside and the weather at the time was torrential rain and high winds.

Owing to the heavy rainfall, the car park itself was flooded and the parking bay markings were heavily obscured.

Also owing to the torrential rain and strong winds, as soon as the vehicle was parked, I ran from the vehicle to a place of shelter – I did not see any signs in the immediate vicinity indicating that I could not park in the area chosen. Furthermore, any competent driver would expect the location where the vehicle was parked to be lawful and reasonable.

I am now aware that there are restriction signs in and around the area, however, in the weather conditions that were present at the time, they were not in close enough proximity to the location or sufficiently obvious and adequately positioned to warn that parking was either prohibited or would incur penalty charges.

The weather at the time caused greatly reduced visibility and significantly restricted any view of designated parking bays. The attached photograph, taken the following day, even with small puddles evident but without any falling rain, clearly shows that the parking bays are hard to see.



Photo uploaded to appeal site.

Appeal failed with following response from UKPC:

"We have investigated your appeal based on the information you have submitted and confirm that this Parking Charge was correctly issued because there are sufficient signs at the Crawley Leisure Park warning drivers that there is no parking outside of designated bays, this includes parking across two bays".


This is a free car park site. Is the argument of no 'loss' being suffered by the parking company still valid in these circumstances? Or would you have any other suggestions?

Coupon-mad

The main suggestion is, surely you are at POPLA stage so read post #3 of the NEWBIES thread and create a draft POPLA appeal with several strong points to it, and post it here and ask for comments before you rush off to POPLA's webpage. Use the examples in the Sticky thread to crib from.

We'll assist once you show us your draft. Post it in this thread please, as a reply, don't start another new thread. This one is yours from start to finish, to see you through to a POPLA win.

Juan_Sebastien_Lopez

Below is a draft appeal. It's largely based on an appeal detailed on another thread on this site that seems to have similar basic circumstances.

In particular, Point 2 where reference is made to the parking company referring to 'ParkingEye vs Beavis and Wardley' - is this appropriate in this case - again this has been lifted from the previous thread. It seems relevant but I am unsure if it was included as a result of a specific response by the parking company to a particular point raised in an initial appeal by that person.

Dear POPLA

I write to appeal Parking Charge Notice XXXXXXX issued by XXXX on (insert date).

1. Basic mitigating circumstances

The car park itself is marked in relevant areas with double yellow lines. Any competent and qualified driver would, in accordance with the Highway Code, understand these areas to represent some form of restricted parking. The car park itself offers free parking. Therefore, any driver that parks their vehicle in carefully, thoughtfully and seemingly lawfully in an unrestricted area, then it would be fair and reasonable to consider it a suitable place to park.

The area where the vehicle was parked had no solid white or single/double yellow restrictive markings whatsoever. In addition, other areas of the car park, of the same layout, and in fact areas that would first be seen by drivers upon initial entry to the car park, do have double yellow lines representing restricted parking. If these yellow lines represent restricted parking in certain areas, then they should be in use in every area of the car park where parking is prohibited. This inconsistency is unfair on customers and misleading.

Photographs 1, 2, 3 and 4 show the area where the vehicle was parked when the alleged breach occurred and highlight the complete lack of any restrictive road marking.

Photograph 5 shows other areas of the car park that clearly have double yellow lines to represent prohibited parking.

The signage in the car park is unlit, non-reflective and found at a height of approximately 8 feet in the air. The full wording is not easily readable from head height unless in extremely close proximity. Photograph 6 shows the view of the signage from adult head height at a distance of just 3 feet and illustrates that the terms and conditions are exceptionally difficult to read. In a free car park, a driver would not be in any way inclined to approach such a sign as there would be no reasonable expectation of incurring any penalty, especially when also taking into consideration the above detailed inconsistencies regarding double yellow lines being utilised throughout the area.


The car park has very poorly marked spaces. The bays themselves are not marked with solid white lines in any area. The lengths of the bays are marked only with spaced white marks approximately 1.5 to 2 feet apart. The front edge of the spaces have no markings whatsoever and therefore the specific spaces are very difficult to make out.


Photograph 6 shows the car park from a driver’s seat perspective and clearly highlights that when other vehicles are in situ, bay markings appear almost non-existent. The apparent lack of bay markings therefore add significant weight to the reasonable belief that an unmarked ground area would be an acceptable place to park a vehicle.

At the time the vehicle was parked at the car park, it was the dark of night and there was a torrential downpour of rain. The car park was full and many cars were blocking the lanes unable to manoeuvre. The ground was flooded with excess rainwater and visibility was significantly reduced. Bay markings were not seen anywhere and a thorough check of the ground area around the vehicle before leaving it unattended confirmed that there were no road markings to indicate parkign was prohibited.


2. The Charge is not a genuine pre-estimate of loss

The demand for a payment of £100 (£60 minimum at prompt payment) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the landowner. The car park is a free car park. There is therefore no loss flowing from this parking event because there can be no loss of potential income when a car is parked in an area that is not marked as a space.

I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. UKPC parking charge notice refers to 'breach of terms and conditions' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event by a driver who was fully authorised to be parked at that site at no cost.

The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being inappropriately ticketed.

Additionally, the charge is not 'commercially justified'. If UKPC cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

My case is the same and UKPC contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, UKPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

3) Lack of standing/authority from landowner
UKPC has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts or in neither their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.

I require UKPC to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to pursue charges in their own right.

The reason that the contract cannot merely be signed by a lessee, occupier or managing agent is found in the case of Devere Parking Services v Mr X, claim number A3QZ5517 at Bournemouth on 3/4/2014, where DJ Williams decided the claim must fail despite a witness statement from an agent/occupier. This was because the contract was not in the name of the landowner. The occupier/agent could theoretically have permission to sign the contract, but even if they did, they would have to sign 'on behalf of' the landowner, not themselves. So I contend UKPC only have a contract with a managing agent or lessee and so this is not sufficient to prove the actual landowner has authorised their operation. In a recent case in September 2014 (about Highview Parking) the Assessor concluded 'I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid.'

4) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend that it is wholly unreasonable to rely on unlit signs placed some 7 to 8 feet above ground level and way over head height, in a ‘free’ car park, in attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where by the alleged parking infringement, no loss had occurred. I put this Operator to strict proof to justify that their charge is reasonable.

5) Unclear and non-compliant signage, forming no contract with drivers.
As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.” BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a 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 on this.”

BPA code 18.3 states “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 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.”

The car park entrance is on a road crossing where traffic is coming from three different sides, entering and exiting the car park. The driver’s attention is therefore focused on the traffic, not to a parking sign amongst other signs on the side of the entrance where you are least likely to look due to the position of the other moving vehicles around you.

This concept of clarity is also stated in case law. When giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, Lord Denning stated that this was not “drawn to his attention in the most explicit way. The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.”

Due to the above points, I respectfully request that my appeal is upheld and the charge is dismissed.

Randomhero

Any news / luck with this? In a similar situation

Redx

Randomhero wrote: »

Any news / luck with this? In a similar situation

unlikely to be any news for some time, popla are still dealing with cases from late 2015

just follow a similar path and plagiarise the above popla appeal for your own draft, after reading through post #3 of the NEWBIES sticky thread

if you havent appealed yet, read the BPA and POPLA parts of post #1 too , then post #3

Randomhero

Cheers, have read through the newbie section now just reading successful appeals. My question would be is the draft posted here relevant and up to date? Thanks for reply

Redx

anything posted since the Beavis case last november is relevant and up to date, so a popla appeal posted last month is definitely "up to date" , as is the NEWBIES sticky thread "up to date"

the trick is not to read anything prior to november 2015 (when the Beavis case was decided at the Supreme Court)

so consider anything dated 2016 as "relevant and up to date"

I would also add a separate BPA CoP appeal point too , for items like grace periods

post #3 of the NEWBIES sticky thread has examples of recent popla appeals, so study those and alter whatever you need in order to fit the popla appeal to your "case"