Parking Charge for Stopping/Waiting less than 20 seconds!

backtobasix

Here is what I've come up with so far

Dear POPLA,

Please find below my rebuttal to Park Directs Response.

The first point I would like to make is regarding the evidence pack. The operator responded to my Popla Appeal on 22 February. I had 7 days from that point to respond. However I did not receive an evidence pack through the post. I contacted the operator and was told they would email me the evidence pack, which i eventually received on the 29th February via email.
I attach the Zip file that they sent me. I will also forward you the complete email seperately as evidence.

I have compared the evidence pack they have sent me with the evidence they reference in their response to you. And it appears that they have sent you additional items that they did not provide to me, namely:

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 with signs circulated in red were not sent to me in the evidnece pack they emailed me.

Therefore for these reasons, I would request that the above pieces of evidence be disregarded as part of your investigation. There may be more differences to the evidence that has been sent to yourslef and me, and If you can determine any other evidence that was not also sent to me, I also request that it be disregarded.


The next area of my rebuttal is to do with Grace Period.

Contrary to what the operator has stated, I don't believe there was ever any intention of providing a grace period.

The vehicle entered the car park with the intention of parking, was stationary for a period of less than 30 seconds (just about enough time for the driver to read the terms and conditions of parking) and upon realising that the vehicle could not be parked in those grounds, exited the car park in approximately 1 minute. The timestamps on the images provided in the evidence confirm this.

I will again refer you to the BPA Code of Practice for Grace Periods:

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

The actions of the operator clearly indicates that they breached all the above points.

In response to the point where the Operator states a contract had been made. The operator argues that '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.' and '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'

In fact, The evidence supplied confirms that the driver decided NOT to stay there after pulling into the bay.

As mentioned in the original appeal, the vehicle was stationary in the car park for less than 30 seconds, stopping in those brief seconds to notice and read a sign that appeared to be making a contractual offer, having become aware that this was a binding offer the driver made the decision to reject the offer and left the car park, thus no performance of the contract was carried out. The supreme court Beavis Vs Parking Eye states very clearly in its judgement that the contract is performed by performance in parking and leaving the vehicle parked .

---

Thats all I have for now - I'm going through their points about GPEOL but there is to much legal speak in there for it to make sense - are there any effective rebuttals for GPEOL that i could use?

Thanks again

Coupon-mad

Not sure about anyone else but the zip file didn't download for me. It would be useful to see it in case we can see more.

Can the sum of the parking charge be read from the site photos of the car (not just from a library stock picture of some close-up signage wording)?

Maybe add this for now and try to show us the zip file in another way - in Dropbox maybe?:


Dear POPLA,

Please find below my rebuttal to Park Direct's Response.

This is NOT new evidence, not new points but there is much to comment upon because the evidence supplied is misleading and wrong in various places.

Evidence pack not sent to me for a week
The first point I would like to make is regarding the evidence pack. The operator responded to my Popla Appeal on 22 February. I had 7 days from that point to respond. However I did not receive an evidence pack through the post and it seem the operator did not want me to see the evidence POPLA had. I contacted the operator and was told they would email me the evidence pack, which I eventually received on the 29th February via email.
I attach the Zip file that they sent me. I will also forward you the complete email separately as evidence so please ensure my email forwarfding is compared to the evidence POPLA has been sent.

Evidence pack I was sent is missing documents POPLA will need to disregard
I have compared the evidence pack they have sent me with the 'case notes' which mentions other evidence they reference in their response to you. And it appears that they have sent you additional items that they did not provide to me, namely:

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 with signs circulated in red were not sent to me in the evidence pack they emailed me.

Therefore for these reasons, I would request that the above pieces of evidence MUST be disregarded as part of your investigation, as I have discovered that POPLA had to do in 2015 on some occasions, when a parking firm sent less evidence to an appellant than to POPLA. Not only is it very clearly unfair and sharp practice to withhold parts of the evidence POPLA have been sent, it prejudices my position.

Had I not realised I was missing some evidence mentioned in the notes, I would have thought that the operator had not supplied any proof of landowner authority at all. Of course, effectively they haven't shown 'landowner authority' because I have not seen it - so it will have to be disregarded, in order for POPLA to continue with the consistent approach shown in 2015 when this occurred in other cases in the public domain.

There may be more differences to the evidence that has been sent to yourself and me, and If you can determine any other evidence that was not also sent to me (by comparing what I have in the email from this operator) I also request that it be disregarded.


The next area of my rebuttal is to do with Grace Period.
Contrary to what the operator has stated, I don't believe there was ever any intention of providing a grace period.

The driver entered the car park with the intention of parking because there were marked bays in view (not a no-stopping zone or anything obvious on arrival). The vehicle exited the car park in approximately 1 minute after being stationary for mere seconds, which was all it took for the hiding operative to sneak pictures with their mobile phone to mislead POPLA into believing the car was 'parked'. In fact, having NOT accepted terms to park once they were legible from the angle of approach, the driver decided to leave. The timestamps on the images provided in the evidence confirm this.

I will again refer you to the BPA Code of Practice for Grace Periods:

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

The actions of the operator clearly indicates that they breached all the above points.


This charge is not based upon a GPEOL and can be easily distinguished from ParkingEye v Beavis. It is a penalty and the 'penalty rule' has not been disengaged.

This is not a new appeal point, this is a rebuttal of the irrelevant blather about the Beavis case which it seems every parking firm is churning out even though the Beavis case was about an unusual and 'complex' contractual situation.

I stated in my POPLA appeal that the charge is not based on a GPEOL and that it is a penalty that is still a relevant submission because the penalty rule is engaged (as the Judges stated in the Beavis judgment) and they also found that for simple contract cases with an alleged breach and charge for default (like this allegation), Lord Dunedin's 4 tests for a penalty remain a 'useful tool'.

Indeed they also stated that third parties without title in the land cannot pursue a charge for trespass, only the landowner can and then the sum would be limited to the loss (or a GPEOL).

The Beavis case works more in my favour than for this operator because there is no similarity, not in the non-prominent signs, nor the allegation, nor the timings, nor their rationale of the disproportionate penalty, nor the lack of grace period, nor the BPA CoP breaches, nor the unfair terms.

The operator has not even tried to paint a compelling picture (or any picture at all) of their 'legitimate interest' in charging such a disproportionate sum for the seconds it took for the driver NOT to enter into the contract.

Parking charges cannot be shot down just because the operator says in response to the GPEOL appeal point ''look: Parking Eye v Beavis - we win!'' yet makes no case of their own, adduces no evidence in this car park/about this case, which shows the penalty rule has 'legitimate' commercial reasons to be considered disengaged.

The supreme court Beavis Vs Parking Eye states very clearly in its judgement that the contract is performed by performance in parking and leaving the vehicle parked. Mr Beavis was considered to have read the 'very prominent' terms first which showed the parking charge 'in large lettering' and by the action of parking and leaving his car, he was found to have made a promise/accepted a limited licence to park, which constituted consideration and acceptance of terms. And that decision was tweeted by the official Supreme Court as only relating to that car park, that unique set of arrangements with the landowner, that 'free parking' licence which made it a 'complex' contract and those particular signs and documents. It does not even relate to all ParkingEye cases, let alone all others!

Not the same as my case then.

The fact remains the charge is a penalty - not even a disguised one, it is in plain sight, a penalty. This is certainly not a commercially justified sum.



I would comment that much of the evidence is misleading and incorrect, for example here the operator twists cases which, in fact, do not support this charge at all (rather like the Beavis case, these judgments are being used and abused by operators just because they are 'parking' cases):

This operator misleadingly states the following which I wish to rebut and in fact, use in my favour because they are not as painted by this operator:

''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.''

In fact, in Arthur v. Anker [1997] Q.B. 564

https://en.wikipedia.org/wiki/Arthur_v_Anker

...there were held to exist, very prominent, concise terms on a clear, brightly marked sign WHICH WAS SEEN BY THE DRIVER WHO THEN PARKED and Sir Thomas Bingham M.R. set out the judge's findings on consent, at pp. 571-572:

"The judge held that Mr. Arthur parked in full knowledge that he was not entitled to park and of the possible consequences if he did.''

Not the same as my case then.

In Thornton v Shoe Lane Parking [1971]

http://www.e-lawresources.co.uk/Thornton-v-Shoe-Lane-Parking.php

...it was held that a parking contract starts when the driver consents to terms, by performance (in that case, only when the driver decided to stay and put money in a machine). The terms on the machine itself constituted the offer. The acceptance was by putting the money into the machine and not before, not 'on entry' as this operator has wrongly argued.

Not the same as my case then.

In Vine v Waltham Forest London [2000]

https://en.wikipedia.org/wiki/Vine_v_London_Borough_of_Waltham_Forest

...this was a victory for the motorist and in fact found the driver (who had not seen the signs and was there very briefly) was a trespasser who had NOT entered into a contract in the few minutes that she was there. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see the sign. There was never any suggestion that the plaintiff was other than a truthful witness and the clamping fee extorted from her under no lawful excuse was an act of trespass and the charge had to be refunded.

That is the only case adduced by this operator, which is in any way vaguely similar to my appeal in this case (albeit this is a clamping case). Ironically, it supports and upholds my appeal. This appeal case is binding on lower courts and found that where terms on a sign are not seen in a few minutes, the driver has not consented to those terms and cannot have 'breached' an unknown contract.

This operator therefore misleads POPLA and myself with this sentence:

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.

The BPA Code of Practice says no such thing! And in basic contract law terms, a driver cannot possibly be deemed to have entered into a 'legally binding' contract until he's had a fair chance to read the terms. Even if the terms state "No picking up or dropping off" or even ''no stopping for a second'' there can still be no agreed 'contract' unless the driver has had an opportunity to read the signs and make up his mind about the 'offer' first.

As for how the driver "uses the grace period" there is nothing about that in the BPA CoP either. The suggestion that the grace period is something a driver can (before reading any terms) 'choose' to use either for that purpose or for something else is nonsensical and entirely circular.

Upon entry, until he reads the signs and considers the offer (which takes more than 30 seconds) at this point he doesn't know that he even needs a grace period nor does he know anything about any terms by which he might later be bound. There were no terms that the driver was made aware of or agreed to. The grace period is there to stop sharp practice exactly like this.

A driver is entitled in all fairness, reasonable time to look for signs, drive or walk near enough so that he can then read the wording and learn that he's being effectively forced into a stealth 'contract' unless he leaves - which the driver did! The driver left immediately, as soon as he could see the notorious words on the badly placed and certainly not 'prominent' signs.

It is irrelevant whether another (non-driver) person got in/out - it is ONLY relevant that the driver has a right to a mandatory grace period and as soon as the terms were close enough to be read within a minute, decided not to stay, not to enter into any contract at all. It might have been different if this had been a very clearly marked 'no stopping/no dropping off zone' (with clear painted markings such as double red lines or yellow hatched markings) but it was marked as parking bays which is in fact an invitation to park.

More misleading information from this operator, from start to finish.

I hope POPLA can see that I have not been fairly treated and nor was the driver, and will uphold my appeal in this instance.

backtobasix

Wow Coupon Mad, I wasnt expecting such a detailed and comprehensive response. I really appreciate your help with this.

here is dropbox link to the evidence pack

https://www.dropbox.com/s/rshb40u4te1mwty/popla.zip?dl=0

As mentioned previously it contains everything except what i have already linked to in Post 1. Linked again below for reference.

https://drive.google.com/file/d/0B6LOmwcnONzDZjdlVUlLRUpjUTQ/view?usp=sharing

https://drive.google.com/file/d/0B6LOmwcnONzDYnBLOU9Xeng2Qk0/view?usp=sharing

https://drive.google.com/file/d/0B6LOmwcnONzDUnFhWnAxbm5xSW8/view?usp=sharing

https://drive.google.com/file/d/0B6LOmwcnONzDRW9vRnZZc3RVVjQ/view?usp=sharing

https://drive.google.com/file/d/0B6LOmwcnONzDanU5SmRMUTg3b28/view?usp=sharing

https://drive.google.com/file/d/0B6LOmwcnONzDaVBoMHlDbW5IMFE/view?usp=sharing

Coupon-mad

Certainly do not forget to email POPLA a copy of the evidence pack the operator sent to you!

Coupon-mad

OK I could see that zip file in Dropbox, so they've shown no evidence photos of any entrance signs? And as you say, no site map and no landowner authority in your evidence pack.

Definitely not allowed if POPLA have a fuller version. I have added a bit, shown in red:





Dear POPLA,

Please find below my rebuttal to Park Direct's Response.

This is NOT new evidence, not new points but there is much to comment upon because the evidence supplied is misleading and wrong in various places.

Evidence pack not sent to me for a week
The first point I would like to make is regarding the evidence pack. The operator responded to my Popla Appeal on 22 February. I had 7 days from that point to respond. However I did not receive an evidence pack through the post and it seem the operator did not want me to see the evidence POPLA had. I contacted the operator and was told they would email me the evidence pack, which I eventually received on the 29th February via email.
I attach the Zip file that they sent me. I will also forward you the complete email separately as evidence so please ensure my email forwarfding is compared to the evidence POPLA has been sent.

Evidence pack I was sent is missing documents POPLA will need to disregard
I have compared the evidence pack they have sent me with the 'case notes' which mentions other evidence they reference in their response to you. And it appears that they have sent you additional items that they did not provide to me, namely:

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 with signs circulated in red were not sent to me in the evidence pack they emailed me. I see no evidence of any photos taken at the entrance nor any pictures of any signs informing a driver how the data captured by their 'surveillance cameras' (aka mobile phone) would be used. The only site photos of signs in my pack are low down, well beneath any car window height and the sign is broken/damaged - certainly illegible from a driver's seat. A person would have to get out of the car in order to read terms and in this case a passenger saw the sign, warned the driver of this typical scam by Park Direct and the driver turned around and left without even stopping/getting out to finish reading the full terms because they did not accept them.

Therefore for these reasons, I would request that the above pieces of evidence MUST be disregarded as part of your investigation, as I have discovered that POPLA had to do in 2015 on some occasions, when a parking firm sent less evidence to an appellant than to POPLA. Not only is it very clearly unfair and sharp practice to withhold parts of the evidence POPLA have been sent, it prejudices my position.

Had I not realised I was missing some evidence mentioned in the notes, I would have thought that the operator had not supplied any proof of landowner authority at all. Of course, effectively they haven't shown 'landowner authority' because I have not seen it - so it will have to be disregarded, in order for POPLA to continue with the consistent approach shown in 2015 when this occurred in other cases in the public domain.

There may be more differences to the evidence that has been sent to yourself and me, and If you can determine any other evidence that was not also sent to me (by comparing what I have in the email from this operator) I also request that it be disregarded.


The next area of my rebuttal is to do with Grace Period.
Contrary to what the operator has stated, I don't believe there was ever any intention of providing a grace period.

The driver entered the car park with the intention of parking because there were marked bays in view (not a no-stopping zone or anything obvious on arrival). The vehicle exited the car park in approximately 1 minute after being stationary for mere seconds, which was all it took for the hiding operative to sneak pictures with their mobile phone to mislead POPLA into believing the car was 'parked'. In fact, having NOT accepted terms to park once they were legible from the angle of approach, the driver decided to leave. The timestamps on the images provided in the evidence confirm this.

I will again refer you to the BPA Code of Practice for Grace Periods:

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

The actions of the operator clearly indicates that they breached all the above points.


The next area of my rebuttal is to do with my appeal point about unclear/non-prominent and unreadable signs.

POPLA please remember my pack shows no entrance signs nor site map so that evidence must be disregarded if POPLA has more than I do in your copy of the evidence. Please also remember that I am the keeper and all I had seen up until this point was the NTK and the rejection letter, so this is my very first opportunity to make informed comments about the terms on the signs. None of the words could be read from the grainy photos taken by a phone at some distance, as shown to me on the NTK.

The car park signage is placed very low - beneath driver seat height - and the one nearest the car is damaged and cannot be read from the site photos (it may or may not match the library stock version but that cannot be assumed because no close up photos were taken, no attempt was made to place a PCN on the windscreen and record evidence of clear, readable terms near the car). There is a sign but all you can see is it is pale, low, not lit and it is broken. These signs are inadequate notice of terms and conditions and also inadequate as regards this operator's duties as a data handler of photographic images of vehicles (whether ANPR or CCTV or other camera pictures, all such data falls under their ICO registration and the BPA CoP).

Its car park signs do not warn motorists that data captured by its so-called 'surveillance' cameras would be used for the purpose of trying to enforce cases of trespass. Nor do they warn motorists that data captured by its ANPR cameras would be used for the purpose of pursuing unpaid parking charges from the vehicle’s registered keeper in accordance with the provisions of Schedule 4 of POFA.

The establishment of keeper liability under POFA is not automatic; it is conditional upon:

a) the operator choosing to exercise its right to use the provisions of POFA and
b) then fully complying with the strict requirements of POFA.

In the absence of the car park signs giving a clear warning that Park Direct intended to use POFA to claim keeper liability, motorists - in accordance with their rights under Paragraph 69 of the Consumer Protection Act 2015 (CPA) - are reasonably entitled to conclude that Park Direct do not intend to use Schedule 4 of the POFA. Under the CPA, the interpretation of information on signs which most favours a consumer must prevail, in the event of ambiguity or omission by the trader responsible for drafting it. Indeed the interpretation that there is no intention for 'keeper liability' is confirmed by the evidence close-up of a sign (one of the few in my evidence pack) which states that 'you' will be liable - i.e. the driver, not the keeper.

I draw POPLA’s attention to the following as further comment upon the sign in the evidence:

Non-compliance by 'unauthorised' vehicles can only be a matter of trespass rather than breach of contract. It is obviously impossible to form a “Parking Contract” with a motorist for whom parking is expressly forbidden and impossible for a driver to breach a contract for a non-existent licence to park. Unlike in the Beavis case, such a licence was never offered.

The capturing and storage of photographs of the vehicle and registration by cameras and the processing of this data by Park Direct to request registered keeper details from the DVLA is unsupported due to ICO and BPA CoP breaches. The resulting ultra vires 'charge' is therefore, unenforceable.

Even if this information had been clearly brought to the driver’s attention, this would have been after the driver had already entered the car park, not before. Furthermore as detailed above, in the case of trespass there could be no “Parking Contract”; Park Direct’s notice did not specify that the data captured would be used to identify trespassers.

However I would remind the Assessor that the driver did NOT have a fair opportunity to read any of the terms. The unfairly depleted version of evidence I have received from this operator, which does not match the fuller version which I believe they supplied to POPLA, shows me no entrance sign, only an alleged version of what they wish me to believe the pale/damaged sign might have said (which, even if this is a true copy, is not enough for ICO and BPA compliance for camera-enforced sites).




This charge is not based upon a GPEOL and can be easily distinguished from ParkingEye v Beavis. It is a penalty and the 'penalty rule' has not been disengaged.

This is not a new appeal point, this is a rebuttal of the irrelevant blather about the Beavis case which it seems every parking firm is churning out even though the Beavis case was about an unusual and 'complex' contractual situation.

I stated in my POPLA appeal that the charge is not based on a GPEOL and that it is a penalty that is still a relevant submission because the penalty rule is engaged (as the Judges stated in the Beavis judgment) and they also found that for simple contract cases with an alleged breach and charge for default (like this allegation), Lord Dunedin's 4 tests for a penalty remain a 'useful tool'.

Indeed they also stated that third parties without title in the land cannot pursue a charge for trespass, only the landowner can and then the sum would be limited to the loss (or a GPEOL).

The Beavis case works more in my favour than for this operator because there is no similarity, not in the non-prominent signs, nor the allegation, nor the timings, nor their rationale of the disproportionate penalty, nor the lack of grace period, nor the BPA CoP breaches, nor the unfair terms.

The operator has not even tried to paint a compelling picture (or any picture at all) of their 'legitimate interest' in charging such a disproportionate sum for the seconds it took for the driver NOT to enter into the contract.

Parking charges cannot be shot down just because the operator says in response to the GPEOL appeal point ''look: Parking Eye v Beavis - we win!'' yet makes no case of their own, adduces no evidence in this car park/about this case, which shows the penalty rule has 'legitimate' commercial reasons to be considered disengaged.

The supreme court Beavis Vs Parking Eye states very clearly in its judgement that the contract is performed by performance in parking and leaving the vehicle parked. Mr Beavis was considered to have read the 'very prominent' terms first which showed the parking charge 'in large lettering' and by the action of parking and leaving his car, he was found to have made a promise/accepted a limited licence to park, which constituted consideration and acceptance of terms. And that decision was tweeted by the official Supreme Court as only relating to that car park, that unique set of arrangements with the landowner, that 'free parking' licence which made it a 'complex' contract and those particular signs and documents. It does not even relate to all ParkingEye cases, let alone all others!

Not the same as my case then.

The fact remains the charge is a penalty - not even a disguised one, it is in plain sight, a penalty. This is certainly not a commercially justified sum.



I would comment that much of the evidence is misleading and incorrect, for example here the operator twists cases which, in fact, do not support this charge at all (rather like the Beavis case, these judgments are being used and abused by operators just because they are 'parking' cases):

This operator misleadingly states the following which I wish to rebut and in fact, use in my favour because they are not as painted by this operator:

''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.''

In fact, in Arthur v. Anker [1997] Q.B. 564

https://en.wikipedia.org/wiki/Arthur_v_Anker

...there were held to exist, very prominent, concise terms on a clear, brightly marked sign WHICH WAS SEEN BY THE DRIVER WHO THEN PARKED and Sir Thomas Bingham M.R. set out the judge's findings on consent, at pp. 571-572:

"The judge held that Mr. Arthur parked in full knowledge that he was not entitled to park and of the possible consequences if he did.''

Not the same as my case then.

In Thornton v Shoe Lane Parking [1971]

http://www.e-lawresources.co.uk/Thornton-v-Shoe-Lane-Parking.php

...it was held that a parking contract starts when the driver consents to terms, by performance (in that case, only when the driver decided to stay and put money in a machine). The terms on the machine itself constituted the offer. The acceptance was by putting the money into the machine and not before, not 'on entry' as this operator has wrongly argued.

Not the same as my case then.

In Vine v Waltham Forest London [2000]

https://en.wikipedia.org/wiki/Vine_v_London_Borough_of_Waltham_Forest

...this was a victory for the motorist and in fact found the driver (who had not seen the signs and was there very briefly) was a trespasser who had NOT entered into a contract in the few minutes that she was there. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see the sign. There was never any suggestion that the plaintiff was other than a truthful witness and the clamping fee extorted from her under no lawful excuse was an act of trespass and the charge had to be refunded.

That is the only case adduced by this operator, which is in any way vaguely similar to my appeal in this case (albeit this is a clamping case). Ironically, it supports and upholds my appeal. This appeal case is binding on lower courts and found that where terms on a sign are not seen in a few minutes, the driver has not consented to those terms and cannot have 'breached' an unknown contract.

This operator therefore misleads POPLA and myself with this sentence:

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.

The BPA Code of Practice says no such thing! And in basic contract law terms, a driver cannot possibly be deemed to have entered into a 'legally binding' contract until he's had a fair chance to read the terms. Even if the terms state "No picking up or dropping off" or even ''no stopping for a second'' there can still be no agreed 'contract' unless the driver has had an opportunity to read the signs and make up his mind about the 'offer' first.

As for how the driver "uses the grace period" there is nothing about that in the BPA CoP either. The suggestion that the grace period is something a driver can (before reading any terms) 'choose' to use either for that purpose or for something else is nonsensical and entirely circular.

Upon entry, until he reads the signs and considers the offer (which takes more than 30 seconds) at this point he doesn't know that he even needs a grace period nor does he know anything about any terms by which he might later be bound. There were no terms that the driver was made aware of or agreed to. The grace period is there to stop sharp practice exactly like this.

A driver is entitled in all fairness, reasonable time to look for signs, drive or walk near enough so that he can then read the wording and learn that he's being effectively forced into a stealth 'contract' unless he leaves - which the driver did! The driver left immediately, as soon as he could see the notorious words on the badly placed and certainly not 'prominent' signs.

It is irrelevant whether another (non-driver) person got in/out - it is ONLY relevant that the driver has a right to a mandatory grace period and as soon as the terms were close enough to be read within a minute, decided not to stay, not to enter into any contract at all. It might have been different if this had been a very clearly marked 'no stopping/no dropping off zone' (with clear painted markings such as double red lines or yellow hatched markings) but it was marked as parking bays which is in fact an invitation to park.

More misleading information from this operator, from start to finish.

I hope POPLA can see that I have not been fairly treated and nor was the driver, and will uphold my appeal in this instance.

backtobasix

Many thanks for the comprehensive reply CouponMad. I canot thank you enough.

i'll produce the rebuttal now and aim to submit tomorrow. Couple of questions:

1. Do I save as PDF and email them the PDF, or put it all in the email?

2. Can you confirm what quote you are referring to when you mention the below:

This operator therefore misleads POPLA and myself with this sentence:

Thanks

Coupon-mad

It's in post #33 but because I copied & pasted, the sentence didn't show in the later post. Nor did the 'Arthur v Anker' sentence quoted show up in the copied version in post #33 so you MUST add them back in, so your version has it all. I've just copied them back into the revised post.

Do what this person did, email a PDF and if the 'Portal is still open, add a note there too:

https://forums.moneysavingexpert.com/discussion/comment/70251301#Comment_70251301

HTH

backtobasix

Just an update on this.

I emailed POPLA my rebuttal as a PDF as well as forwarding the Operators Evidence email and they responded today confirming that both emails had been added to the case file.

I went back into the POPLA portal and was able to add the comments below before submitting.

Dear POPLA Assessor,

I have sent in email responses with attached PDF + other evidence as a rebuttal to the Operators information and evidence.

My emails+attachments have been added to this case file as confirmed by POPLA team member A.N.Other on 07/03/2016 via email (received at approx. 2pm).

I look forward to a positive outcome.


Thanks to all who contributed to this Thread again for assisting with this appeal, and I hope it helps others out in a similar situation in the future.

I will keep you updated on the outcome whenever it comes through.

backtobasix

Have received the decision on this - Unfortunately it was unsuccessful. Is there anything more that can be done?

---

DecisionUnsuccessful
Assessor Name XXXXXXXXXXXXXX
Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant stopped in an area where stopping is not permitted.

Assessor summary of your case
The appellant states that the operator has not allowed a grace period, and has not provided adequate signage to enforce a contract. The appellant also contends that the notice to keeper is not compliant with the protection of freedoms act 2012, the operator does not have the authority of the landowner to issue parking charges, and that the charge is not a genuine pre-estimate of loss.

Assessor supporting rational for decision
When it comes to parking on private land, a motorist accepts the terms and conditions in place at the site by parking their vehicle. In this case, the terms and conditions are set out on the signage on site that states, “unauthorised vehicles; strictly no stopping/waiting or parking”. The operator has provided photographic evidence which it states shows the appellant using the car park to drop off a passenger. It therefore issued a Parking Charge Notice (PCN).

The appellants first ground of appeal is the British Parking Association (BPA) grace periods, detailed in section 13 of the BPA Code of Practice. There are two forms of grace period, the first is to allow the motorist chance to review the terms and conditions and choose whether to accept them, and the second is to allow the motorist to leave the site following a valid parking period.

The second grace period is not relevant in this case, as the operator argues that the appellant has no right to be on site. The first grace period is relevant in that the appellant should be allowed the opportunity to review the terms and conditions and choose whether to accept them. In this case, by using the car park to drop passengers off, the appellant has used the car park for its intended purpose, and is therefore seen to have accepted the terms on site. Had the appellant entered the site, not dropped anyone off, and left, then they could argue they had not accepted the terms and conditions, and left immediately.

Further to this, the appellant argues that the signage was unclear, and therefore a contract was not agreed. The appellant also states the vehicle was not parked. The photographic evidence shows that the vehicle was parked, as it would need to be to allow passenger to get out. I consider the entrance sign sufficient to not that the car park is managed, and therefore the driver should seek out the terms and conditions, and choose whether to accept them. By using the car park for its intended purpose, I consider the appellant has accepted the terms detailed. I note the appellant parked by a sign that lists the terms and conditions, and therefore I consider the terms were readily available to them.

The appellant argues that the notice to keeper is not compliant with the Protection of Freedoms Act 2012 (POFA 2012), section 9, d, ii. I note that the parking charge is due immediately following the contravention, as the appellant is seen to have entered into a contract whereby the charge is payable if the terms and conditions are not complied with. The notice to keeper details this charge, and the charge was payable prior to the notice to keeper. I therefore consider the notice is compliant with POFA 2012.

The operator has provided a copy of the authority from the landowner to operator on site. I am satisfied with the content of this evidence for the purposes of a POPLA appeal. I note that while the appellant has stated that a witness statement would not be satisfactory to them, it is acceptable to POPLA in dealing with an appeal.

The appellant states that the parking charge has not been justified in terms of the loss to the landowner. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear , the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court.

Having reviewed the evidence and the appellants grounds for appeal, I consider the appellant has used the site to drop off passengers, and therefore accepted the contract by using the car park. I therefore find the operator issued the PCN correctly.

Ralph-y

yes there is .......

POPLA has taken a turn for the worst

we need every one who has been treated badly by them by reason of dubious decisions to do there bit to help us sort POPLA out and get future decisions back on track .......

further help be becoming from the forum wise owls shortly ...

or do searches for failed popla appeals ....

and importantly who was the assessor ?

a list of incompetent assessors is a merging ......

this is my 'oh my god' assessment of the week

"The operator has provided a copy of the authority from the landowner to operator on site. I am satisfied with the content of this evidence for the purposes of a POPLA appeal. I note that while the appellant has stated that a witness statement would not be satisfactory to them, it is acceptable to POPLA in dealing with an appeal. "

others are available !

Ralph:cool: