Parking Charge for Stopping/Waiting less than 20 seconds!

backtobasix

After emailing POPLA twice about my complaint and not receiving any response or acknowledgement I phoned them today and ended up speaking with an assessor.

She kindly re-reviewed the case for me and after speaking with management she called back to say they will cancel the initial decision. She said that the policy now is not to disregard the additional evidence they had. And that she would compare both evidence packs and send me the additional evidence they had.

I've just received some additional site images and the landowner authority. I will send post links later this evening.

I now have 7 days from today to re-send my rebuttal based on all the evidence.

Any help on this new rebuttal would be greatly appreciated.

Ralph-y

" She said that the policy now is not to disregard the additional evidence they had. And that she would compare both evidence packs and send me the additional evidence they had."

can you believe that :eek:

Ralph:cool:

Fruitcake

Ralph-y wrote: »

" She said that the policy now is not to disregard the additional evidence they had. And that she would compare both evidence packs and send me the additional evidence they had."

can you believe that :eek:

Ralph:cool:

You mean, can I believe it was previously their policy to disregard additional evidence they had? Yes I can believe that.

Perhaps repeated complaints have, er, made them review their previously erroneous policy.

Coupon-mad

Old POPLA used to have a principle aimed at fairness, which was very clear that they would disregard evidence if it came their attention that the consumer had not seen it. Henry Greenslade even mentioned in POPLA Annual Reports the importance of ALL evidence been seen by both parties who both have a chance to comment.

New POPLA have not the foggiest clue and I think their complaints team must be inundated. They deserve it, their training has been dire, especially in terms of the POFA which is only a tiny schedule in one Act, with JUST TWO deadlines to understand and some simple statutory wording to play 'spot the difference' with. Not difficult to train some one how to decide if a keeper is liable. They've also let people down re accepting signs which can't be read or were pitch black...the list of their dreadful decisions is endless.

I am also concerned she says you can now comment on the evidence, seeing as we know new POPLA ignores comments on evidence...this sounds like a fruitless exercise but let's make a solid effort to make it impossible for them to say your appeal loses.

Let's see what they've sent you now and can you remind us of the issues that we have already said should have won it for you? Easier than us reading back over your thread...I recall yours was about broken/low down signage being impossible to read in the time given and that they'd never shown you the entrance sign or landowner authority.

Was there a POFA argument, or had you appealed as driver, can you remind me?

backtobasix

Here is a link to the new evidence provided:

https://www.dropbox.com/s/y20cgaz002y5yk3/popla2.zip?dl=0

Here is a link to the remaining evidence shared previously:

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

The appeal was made on the following grounds:

1. British Parking Association Code of Practice: Grace Period
2. Inadequate Signage + No Contract agreed by driver
3) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
4. No contract with the Landowner
5. The Charge is not a genuine pre-estimate of loss.


And the link below is the full wording of the decision from POPLA.

https://www.dropbox.com/s/6hmsvjyb6lazujw/POPLA%20Appeal%20Mar2016-Decision.pdf?dl=0

Let me know if you need any more information

Many thanks

Coupon-mad

You can use any/all of this I put together:

POPLA has agreed to re-assess this appeal in view of the fact that this operator did not supply the same evidence pack to myself as was sent to POPLA. This is contrary to the BPA Code of Practice section 22.16a and POPLA were aware of the fact I had not seen the entrance sign evidence nor the landowner ‘contract’ purportedly supplied. POPLA knew the BPA CoP was seriously breached:

22.16a You must keep to the processes and other requirements of POPLA, as set out on their website and elsewhere.
22.16c It is a clear requirement of POPLA that evidence packs are sent to the appellant at the same time as they are sent to POPLA. Failure to do this will be considered a Sanctionable Breach of the Code.

Re the purported ‘landowner authority’ – evidence not properly considered
A BPA CoP breach in itself may not necessarily render a charge improperly given but it certainly does in a case like this, where the ‘landowner authority’ (a vague partly-handwritten letter dated three years ago) requires as a strict condition of the authority, that the operator must comply with the BPA CoP at all times. So, even if the first POPLA Assessor decided that a 2013 basic letter like that one was acceptable, the purported landowner authority was immediately nullified by the BPA CoP fundamentally serious and sanctionable breach that POPLA already knew had occurred.

The letter tells us that the authority is dependent upon compliance with the BPA CoP, so it follows that there can have been no landowner authority granted in a case where the BPA CoP was seriously breached (22.16a and 22.16c). Otherwise, what is the point of that requirement in the authority?

I emailed to show POPLA my copy of the evidence pack when I realised that it referred to several attachments not provided to me by this operator. I specifically asked that any evidence not supplied to me should be disregarded, in accordance with established POPLA policy since 2012.
Even if the Assessor was not minded to disregard the evidence I had never seen, it is clear to me that he has failed to scrutinise the authority.

The Assessor has failed to note that it is dated 2013 yet there is no evidence to show current authority & terms three years later, which cannot be assumed.

The Assessor has also failed to apply 7.3 of the BPA CoP which makes these points mandatory (these details MUST all be shown in any authority/letter/witness statement, yet these were not evidenced):

7.3 The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement



Ambiguous and unclear signage with no £100 charge – Assessor failed to apply contract law
The 2013 landowner’s letter does not even match the terms on the signs, which attempt to communicate FOUR different matters, all conflicting. The first three types of sign fail to mention £100 charge, so are incapable of creating ANY contract on a par with the signs in the Beavis case:

- (1) Vehicles will be clamped (illegal since 2012 - another serious breach of the BPA CoP, because ALL clamping signs were required to be removed, at the latest, by 2013).
- (2) ‘No stopping’ (this sign does not apply/was not on the side with the white parking bays).
- (3) ‘Gym visitors must sign in’ (therefore the bays cannot be a no stopping zone)
- (4) A white sign with a blue ‘P’ which was the only one shown ‘near’ the car and bay, yet the operator’s photos take that day show that the terms can’t be read because the words are too small, the £100 hidden in small print and the signs are below windscreen height.

The only white sign with £100 mentioned that can actually be read in the evidence pack is the ‘stock photo’ shown in isolation, in close up as an example. But that does not enable an Assessor to make any leap to assume and decide what the signs actually look like on site. Only the site photos show that, and they show a broken, illegible and very low-set sign as well as the car turning round to leave!

The driver could not have read any terms nor accepted a contract to pay £100 from that sign, in the seconds shown by the lurking operative with a mobile phone camera. Where, how and at what point in time in those seconds did the driver have a fair opportunity to learn of £100 charge? The actual photos show that side is marked as parking bays, not as a no-stopping zone and apart from the blue ‘P’ for parking, none of the words on the only sign that mentions £100 could be read before stopping and as soon as the driver caught a glimpse of a ‘warning’ wording he turned and left, still never having actually seen anything readable about £100 charge at all.


No contract - Beavis case misapplied by Assessor
It beggars belief - and is believed to be a major source of complaint to ISPA already - that some POPLA Assessors are regurgitating a chunk of text, verbatim, about the Beavis case as soon as GPEOL is mentioned, yet failing to apply the useful information that decision tells us (in support of many appellants’ cases in the public domain) about signs and the law of contract.
Whether a contract is formed in a car park is never dependent upon the actions of passengers. It is dependent upon clear and prominent signage and the Supreme Court Judges in the Beavis case held that their decision to disapply the ‘penalty rule’ in that case alone, was dependent upon the fact that those signs showed the £85 charge in ‘large lettering’ all around the car park including the entrance, so that drivers could not have failed to have seen the terms, given a fair opportunity to read them.

By contrast, in this case it is obvious that the driver was not given a fair opportunity to read any terms about £100 and was not shown to be anywhere near a yellow ‘no stopping’ sign, one of which is shown in the ‘missing evidence’ I was never given, to be very low at the entrance, hidden well away from the line of sight of a driver and completely overshadowed by an enormous and brightly coloured gym sign, on the passenger side of a vehicle and behind a bin. The other yellow sign is near a clamping sign on a wall where no signs even mention £100 charge at all, so even if the driver had passed this, it would not have created any contract to pay £100 nor would a driver have thought the illegal clamping and/or yellow sign applied on the ‘parking bay side’.

As I said in my appeal, If ParkDirect UK had intended to create a 'no stopping/waiting zone' then as was explained by the POPLA Lead Adjudicator, Mr Greenslade, in the POPLA Annual Report 2013, the area must be clearly signed as a no-stopping zone (e.g. double red lines or large yellow hatching or yellow box and adjacent clear and lit signage stating 'no stopping/loading' and repeater signs facing the car in the format of a clearway, not on side walls). This is not a no stopping zone at all; the evidence is flawed and the four types of sign are ambiguous and cannot create a contract.
POPLA as an ADR must be fair and consistent and apply the relevant law and ‘case law’ properly.

This month, a POPLA decision was made in a similar case (no permit/unauthorised parking) in which the Assessor applied the Beavis case correctly. He realised that, even if an appellant has argued about GPEOL, an agreed contract MUST depend upon the opportunity to read onsite, from a car, prominent and clear, unambiguous terms which must include the £100 charge itself being visible:

Verification Code 2362295009
8.4.16

Decision: Successful
Assessor Name: Samuel Connop
The operator’s case is that failed to display a valid permit.

Assessor supporting rationale for decision
‘’While the appellant has raised a number of grounds for appeal, my report will focus solely on Genuine Pre-Estimate of Loss, as this supersedes the other aspects of the appeal…{Beavis case chunk of text standard paragraph snipped}.” As such, it is evident that I must consider whether the signage at the location was sufficient to bring the parking charge to the attention of the appellant and other motorists who may wish to park. Within Section 18.1 of the British Parking Association (BPA) Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states, “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.” Within its response, the operator has provided a number of photographs of the signage at the location from this I consider the signage to be unclear and difficult to read. Additionally, I am not satisfied that the parking charge is visible. Therefore, I can only conclude that the signs are not “conspicuous” and “legible” as required under the BPA Code of Practice and are sufficiently “clear” in order to meet the standard outlined by the Supreme Court as referred to above. Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is not allowable. Although the charge may not be a Genuine Pre-Estimate of Loss; the signage at the location is not clear the charge is unclear. Ultimately, I can only conclude that the signage had not complied with section 18 of the BPA Code of Practice. As a result, I cannot be satisfied that Parking Charge Notice was issued correctly.’’


Grace Period misapplied by the Assessor
Finally, the Assessor in my case has misapplied the BPA CoP as regards Grace periods and made up an entirely new interpretation, wrongly assuming the entire car park to be a no-stopping zone and wrongly finding that the actions of passengers negate the basic fact, that to form a contract, a consumer MUST have a fair opportunity to actually read terms and decide whether to accept them.

Below, the Assessor reached conclusions which are unsupported by the BPA CoP or trite law:

‘’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 Assessor contradicts himself here. He knows that a driver must be allowed time and a fair opportunity to read terms and choose whether to accept them. But then says this, based on no facts at all nor the CoP: ‘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.’ (citation?) Then he contradicts that thought: ‘I consider the entrance sign sufficient to note that the car park is managed, and therefore the driver should seek out the terms and conditions, and choose whether to accept them.’

So the Assessor’s argument here is circular and concludes that the driver should be allowed time to ‘seek out’ the terms – which is exactly what the driver tried to do and did leave immediately the word ‘warning’ was visible (even though no other terms were).

The BPA CoP says this (below) which includes nothing about what a driver or passenger might do in the minutes before deciding to stay and leave the vehicle, or to leave:

Section 13: Grace Period: 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.

I conclude that the Assessor has erred in law.

There was no contract formed to pay £100 and also the operator has seriously breached the BPA CoP by withholding evidence from me. This sanctionable breach rendered their landowner contract null and void in relation to this charge which was not properly given under the circumstances, was unsupported by clear signs and terms and fell squarely within the BPA grace period, which exists to stop ‘immediate ticket’ scams like this one.

backtobasix

Thank you so much for putting this together so quickly, I will aim to work on this today and get it sent to POPLA.

Guys_Dad

This is a long appeal and is in danger of there being too many words obscuring the actual legal points. Having said that, I would not change much, but.............

If there are any significant sentences that could be drawn out, put them in bold. For example. " I realised that it referred to several attachments not provided to me by this operator."

backtobasix

I have now submitted the new re-appeal to POPLA based on CM's suggestions above.

Let's see what happens...

In the meantime the Parking Opeartor have sent me a letter giving me a final opportunity to pay th £100 before taking me to court - I have 14 days.

I've never taken a parking dispute this far before. Does anyone with any previous experience know what is realistically likely to happen if I do not pay....

Redx

report them to the BPA with the details of the pcn , popla code and a copy of the new demand