Parking Charge for Stopping/Waiting less than 20 seconds!

backtobasix

Just a quick update on this - I've just today received the evidence pack from Park Direct. never got it in the post in the end, so they have finally sent me an email after chasing it all last week.

I'll put up a link to the pack shortly, which consists of a handful more photos and the previous correspondence they sent - which I have links to in the first post of this thread.

Popla have added a not to my file and have said to send them an email with the response as it is now too late to use the form on the portal.

Redx

correct, sort out your rebuttals like the NEWBIES thread tells you to do, then when its done save it in PDF format and email it to popla with your reference and details and ask them to add it to your appeal file and to confirm its beed added (dont assume it will be added, make sure)

Coupon-mad

backtobasix wrote: »

Just a quick update on this - I've just today received the evidence pack from Park Direct. never got it in the post in the end, so they have finally sent me an email after chasing it all last week.

I'll put up a link to the pack shortly, which consists of a handful more photos and the previous correspondence they sent - which I have links to in the first post of this thread.

Popla have added a not to my file and have said to send them an email with the response as it is now too late to use the form on the portal.

Have a look at the signs - is the parking charge £ readable?

Have a look to see if they've included landowner authority? Are the dates right, the location and is it signed by the landowner (not another agent)?

Unicorn51

This was done on the date in question, but once the motorist did not use the grace period to read and acknowledge the warning signs, but instead used the site to pick up passengers, the grace period became invalid.

In both their evidence pack and appeal rejection they mention dropping off/picking up. The t&c's only mention stopping/waiting, so i don't see how they can try and use picking up passengers as a reason for the grace period to become invalid.

dazster

This really is a load of rubbish that can't go unchallenged.

The driver can't be deemed to have entered into a contract until he's had a chance to read the T&C's. Even if the T&C's state "No picking up or dropping off", so what? Until the driver has had an opportunity to read the signs and make up his mind about them there is no contract, so the T&C's simply don't apply yet!

As for how the driver "uses the grace period", at this point he doesn't know that he even needs a grace period! It's not a contractual term that the driver has ever been made aware of or agreed to, it's simply the time he needs to determine that he's being made a contractual offer, to digest the contract, and decide whether to accept it. The suggestion that the grace period is something he can choose to use either for that purpose or for something else is nonsensical and entirely circular.

backtobasix

Ok here is the full wording of the operators response as my earlier post didnt capture it all. I've marked in red where the missing part begins below.

here is also a link to the eveidence pack. You will need to click the download link to download the zip file.

hxxps://drive.google.com/file/d/0B6LOmwcnONzDQTFiTkxxdjJnSzg/view?usp=sharing



Our response to POPLA appeal:

Please find attached all supporting evidence to this appeal response, which clearly indicate that the motorist was in breach of the parking restrictions.

The vehicle was in a controlled parking area within a private land where we have been authorised (contract and site map attached) to patrol and enforce parking terms, conditions and restrictions. The photographic evidence taken at the time of the breach proves that the motorist’s vehicle was stopping/ waiting and dropping off in breach of the clear terms and conditions displayed on the warning signs. Therefore the vehicle was not authorised to stop/ wait or drop off there and a PCN is to be issued.

In response to the motorist’s point regarding the grace period, we would like to highlight that according to the BPA code of practice paragraph 13.2 the grace period is in place to allow driver to read the signs and leave the site. However, once the motorist decided to use the site, as seen in the photographic evidence by picking up passengers, the motorist was no longer within the grace period and therefore was acting in breach of the terms and conditions on display. We must bring to your attention that we have reviewed our photographic evidence and confirm that the vehicle was found to stop at the location, for other purposes than to read the signage, meaning that the motorist breached the terms and conditions as on the warning signs. The photographic evidence thus does in fact prove the contravention occurred.

Our parking attendants are instructed to wait and give a reasonable ‘grace period’ to allow the driver to pull into the site and read our terms and conditions before issuing a ticket to ensure we are fair, reasonable and compliant with the British Parking Association’s Code of Practice. This was done on the date in question, but once the motorist did not use the grace period to read and acknowledge the warning signs, but instead used the site to pick up passengers, the grace period became invalid. This is because at that point, the motorist used the site in breach of the terms of parking. Our photographic evidence shows the vehicle being on the site, and at all times within close proximity to warning signs. There are also multiple signs at the entrance, contrary to what the motorist has alleged in their appeal.

Moreover, we would like to highlight that we are a completely different company and have no thing to do with the company mentioned in the motorist appeal. This can be verified by our legal documents if necessary.

The motorist was not adhering to the terms and condition on display as he passed all the since including the entrance sign and decided to use the site by dropping of passengers in breach of the clearly displayed terms and conditions.

We would like to address the motorist’s point that no such contract was made. There are numerous ways in which acceptance of a contract can be constituted, one of which is ‘acceptance via conduct’ (or actions). An example of this can be seen in the cases Arthur v Anker [1996], Thornton v Shoe Lane Parking [1971] and Vine v Waltham Forest London [2000]. The facts of these cases should help you understand the fundamentals of acceptance of a binding contract in a car park environment. The acceptance of the contract is legally binding once you enter the private property and acknowledge the various signs and notices we have on display. Our ticket attendants are instructed to wait and give a reasonable ‘grace period’ to allow the driver to pull into the bay and read our terms and conditions before issuing a ticket to ensure we are fair, reasonable and compliant with the British Parking Association’s Code of Practice. In other words, the acceptance of the contract occurred after the driver pulled into the bay and decided to stay there after being given enough time to observe and read the signage on display at the site. Moreover, there was a lively debate before the judge (in the appeal court in ParkingEye limited v. Barry Beavis) about whether ParkingEye contracted with Mr Beavis as a principal or as agent for the Pension Fund. The judge held that it contracted as principal and there is no appeal against that decision.

The Supreme Court in the same case has addressed the consideration required to form such contract. The court held that “It may be suggested that Mr Beavis thereby promised nothing which can in law constitute valuable consideration. He was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. But ParkingEye was not in possession of the car park, or capable of bringing proceedings in trespass. It had a mere right to control parking at the site - the right to permit or refuse others to park there on such conditions as it might stipulate. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract. Even if no Parking Charge had been stipulated, enforcement would still have been possible in law, even if a claim for damages or for an injunction might not in practice have been likely. With the stipulated Parking Charge, the nature of the intended contract is even clearer, although the question arises whether the Parking Charge is an unenforceable penalty. The quid pro quo provided by ParkingEye in return for Mr Beavis’s promise was the grant of permission to park for up to two hours in its discretion free of charge, on conditions. Each party thus gave the other valuable consideration.”
In this regard, our terms and conditions of parking were clearly incorporated to motorists in that particular site (please refer to the site images attached where signs circulated red for your perusal). We have specific clear, conspicuous and legible signage at that location, which inform/warn drivers of our terms and conditions of parking. The warning signage is larger than the British Parking Association’s (BPA) Code’s minimum requirement of at least 450mm x 450mm in size. From the position of the motorist’s vehicle, the warnings signs were clear and visible. The signs would have been noticeable upon entering and as there are numerous signs on that particular site they would have been extremely difficult to miss or not take notice of. The signage clearly states that a vehicle will receive a PCN if any one stop/wait/park there vehicle in breach of the terms and conditions of parking in that location. Should the drivers have any uncertainty they can always call us on our customer service number displayed on the site for us to direct them (please see copy of the warning signage attached).
However, we would like to point out that, the notice that was given to the motorist is fully compliant with both the BPA code of practice and the requirements of the Protection of Freedoms Act 2012. Under the BPA code of practice, a Notice to Keeper can be given either as the first step in recovering a parking charge, or as the second step after giving a Notice to Driver. In this case the Notice to Keeper was given as the first step according to paragraphs 20.9 and 20.10 of the BPA code of practice.

• 20.9 Or, if you were unable to issue a parking charge notice while the driver was present, perhaps because you use ANPR or camera equipment to monitor the car park, you may want to issue a parking charge notice by post

• 20.10 In either case, you will need to try to identify who was driving the vehicle and make contact with them. You do this by first seeking the keeper details from the DVLA. Having received the keeper details from the DVLA you will need to issue a ‘Notice to Keeper’

Furthermore, Section 9(2)(e) of the Protection of the Freedoms Act 2012, which POPLA relied on in its decision, states that:

(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper:
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver.

Accordingly, the Notice to Keeper that was given to the motorist as the first step and tried to identify the driver at the time of the contravention by inviting the keeper to provide us with the full name and serviceable address of the driver or make a payment. The PCN clearly states in several sections that:

• “The driver is required to pay this parking charge in full using one of the payment methods described below. If within 28 days from the day after in which this notice is served, the parking charge is not paid in full and we have not been made aware of the name and a service address for the driver we will take further action to recover the amount owed”

• “If, after 28 days beginning with the day after that this notice is served, the Parking Charge Notice has not been paid in full, and we have not been made aware of the name and a current serviceable address for the driver, we do have the right under schedule 4 of the Protection Of Freedoms Act 2012, to recover the charges from the registered keeper of the vehicle at the time it was parked so much of that amount that remains unpaid”

• “You may now pay this parking charge notice or if you was not the driver of this vehicle at the contravention time, you may supply us with a name and current address for the driver and pass this notice on to them”

The motorist in his first representation has refused to disclose the name or the address of the driver and declined the invitation to do so (please see attached a copy of the motorist first appeal), therefore, the keeper was held liable for the PCN under the Protection Of Freedoms Act 2012 and the BPA code of practice.

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additional text not in my original post

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We wish to emphasize that we have a valid, in date contract with the landowner and we are contracted to enforce the terms of parking at this location and issue PCN’s to all vehicles, which breach the
displayed terms of parking. The contract was concluded according to the requirements of the BPA code of practice and approved by the compliance team of the BPA at that time (please find this attached). As the motorist acted in breach of the terms displayed around the site, the PCN remains valid and lawfully issued in accordance with our contract with the landowner. Our contract is proof of our interest and
legal authorisation to manage and enforce parking restrictions on the site. It is signed and dated prior to the date of contravention.

In relation to the motorist point in relation to the amount of the PCN, we would like to emphasize that the demanded parking charge certainly falls within the provisions of the British Parking Association’s
(BPA) Code of Practice and to this extent it is neither punitive nor excessive. Accordingly, the judgment of “ParkingEye limited v. Barry Beavis” has explained the nature of the parking charge and the bases of justifying it commercially. The Judge agrees that some support for the view that charges of this kind are not to be regarded as unenforceable can be found in the terms of s 56 and Sch 4 of the Protection of Freedoms Act 2012. para 4 of Sch 4 gives operators of private car parks a right to recover unpaid parking charges from the registered keepers of vehicles. “Parking charges”, however described, are defined to include both sums in the nature of fees or charges arising under the terms of a contract and sums in the nature of damages arising as a result of a trespass or other tort, but in the latter case adequate notice must have been given to drivers when using the car park in question.

In addition, terms and conditions of such contract were obvious to the motorist once he entered the location where he parked and the onus was on the motorist to adhere to the terms and conditions and leave the location immediately or agree to pay the parking charge displayed on the signs and use the location in breach of those terms and conditions. Consequently, as stated in the judgement of ParkingEye limited v. Barry Beavis and according to Murray v Leisureplay and El Makdessi, the Judge held that these provisions strongly support the conclusion that Parliament considered it to be in the public interest that parking charges of the kind now under consideration should be recoverable, provided that they had been brought clearly to the attention of the motorist at the time he made use of the car park. In those circumstances it is difficult to see on what basis it can be said that the charges, which are not in
themselves grossly unreasonable, are to be treated as unenforceable at common law. Additionally, POPLA in a previous decision, published on 18 November 2013, submitted in its decision that “a genuine pre-estimate of loss is not the specific loss caused by the actual breach but may include loss incurred or loss that might reasonably be incurred.”

However, given the parking charge this unique nature is amounted against the claim of the motorist. Still, the parking charge notice considered as commercially justified because it was neither improper in its purpose nor manifestly excessive in its amount. The Judge in ParkingEye limited v. Barry Beavis held that, “although the principal object of the charge was to deter overstaying; it was neither improper
in its purpose nor manifestly excessive in amount, having regard to the level of charges imposed by local authorities and others for overstaying in public car parks.” This in fact reveals the purpose of the
parking charge which simply breaching the terms and conditions displayed on the warning signs.

Since the motorist failed to adhere and comply with those terms and conditions, a parking charge notice was issued for the exact purpose mentioned by the Judge and it is then commercially justified as pointed out by the court. The court also went further to explain the bases of justifying a parking charge, the judge presented the charge as commercially justified due to the nature of the charge and its purpose, yet the court added that, this justification could be done by a combination of factors, social as well as commercial. In the commercial context a “dominant purpose of deterrence” has been equated to extravagance and unconscionability.

However, if we (Park Direct UK Ltd) failed to regulate use of the
parking area effectively, we will be in a great risk of losing our contract with the landowner. The case has clearly stated in addition to clarify the amount of money lost by the user of the parking area who
breaches the terms of parking as in our case; the court says “it was impossible to quantify in money terms the effect of any individual breach of the rules, the cumulative effect of many individual breaches
would be significant in economic terms.” Furthermore, the same view can be seen in ParkingEye Limited v Shelley (2013) case, Judge Dodd found the key issue was not whether or not the charge was a pre-estimate of loss but rather whether the purpose of the parking charge is to deter breach, or if the dominant purpose is commercially justified. Further, he found that on a balance of probabilities that the
dominant purpose was regulation of the car park area, that it was not common for the courts to find a penalty within a contract and that a breakdown of the costs was not required, as the contract was
formed on its own terms.

We therefore submit that it is salient that vehicles using such areas must be authorized to stop/wait/park/drop off/ pick up, as it is private land with the use of permits or by being on our whitelist.

It has been demonstrated how the motorist is liable to the PCN and that all of our processes and procedures have been in compliance with and to the terms of the BPA Code of Practice. We therefore, request for the appeal of the motorist to be declined and request for the motorist to be held still liable for the PCN. All the evidence has been provided to show that the driver did breach the terms of parking
and the PCN was issued correctly. We argue that this appeal is a means to circumvent liability to breach of terms and conditions of parking on that site and liability to the PCN amount due.

Coupon-mad

I'll bump this for others to see tomorrow.

backtobasix

I've gone through the response and have come up with the following queries:

1. They refer to the attached contract and site map but did not include it in the evidence pack they emailed me

2. They mention to 'please refer to the site images attached where signs circulated red for your perusal'. These images were not sent to me in the evidnece pack they emailed me.

Should i email back and request the above, or complain in my rebuttal that this evidence has not been provided to me?

3. Grace Period: I dont beleive any grace period was given. The inital image in the pack shows as soon as the vehicle stopped. No passengers were being picked up as mentioned numerous times by the opeartor - however passengers were dropped off as seen in subsequent images. During that very short period, the driver read the signs and then moved the vehicle.

As Unicord51 mentioned - In both their evidence pack and appeal rejection they mention dropping off/picking up. The t&c's only mention stopping/waiting, so i don't see how they can try and use picking up passengers as a reason for the grace period to become invalid.


Is ther anything else i can use in the rebuttal based on their response or from your experiences?

many Thanks

Coupon-mad

https://drive.google.com/file/d/0B6LOmwcnONzDQTFiTkxxdjJnSzg/view?usp=sharing


Could see the zip file but couldn't open any of the files?

I would keep your rebuttal short and punchy, like you've done below and REALLY make it clear that there are evidence documents that POPLA presumably have that you don't have in your 'copy'!! So POPLA is obliged to disregard those parts of the evidence, as POPLA always did in 2015 when operators sent the public evidence packs which differed in any way from the 'POPLA version'.

Do not ask the operator for these - you need to tell POPLA they are not there. In fact, show POPLA by sending them your evidence zip file but make sure it's saved in a way that can be shared with POPLA by email. The above link does not open for me so maybe it needs saving elsewhere. Do your rebuttal by email, not on the Portal, because you can't add attachments on the Portal.

1. They refer to the attached contract and site map but did not include it in the evidence pack they emailed me

2. They mention to 'please refer to the site images attached where signs circulated red for your perusal'. These images were not sent to me in the evidence pack they emailed me.


3. Grace Period: I don't believe any grace period was given.

Point 3, I would just state that single line with a bit about the BPA CoP quoted directly about 'you must allow drivers reasonable time to read/decide whether to stay or leave without enforcement' (or whatever it says!). ^^^ Don't talk about stopping or anything, nor about passengers, just about the BPA CoP.

And you need to rebut their use of the Beavis case. They've not even made much sense in that part so you need to rebut it.

backtobasix

OK thanks will work on the rebuttal.

Regarding the evidence pack link, there is a link along the top of the page (Arrow pointing downwards) that allows you download a zip file. Are you not seeing that? If not I will try somehitng else?