Help POPLA Appeal Unsuccessful

taroshm

I had appealed against a PCN issued by UKPC on the following grounds :
1. It fails to comply with the Protection Of Freedoms Act(POFA) 2012 so there can be no keeper liability.
2. The parking charge is not a genuine pre-estimate of loss.
3. No contract exists with landowner to pursue charges
4. Unclear and ambiguous signage.

The appeal has been rejected, please can someone suggest next course of action.
Details of the response below

Decision
Unsuccessful

Assessor Name
James Beaton

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the driver parked in a disabled person's space without clearly displaying a valid disabled person's badge.


Assessor summary of your case
The appellant is appealing the PCN on the following 5 grounds 1) Secure-A-Space have failed to establish keeper liability 2) Contract with Landowner 3) Inadequate Signage 4) This charge is not a contractually agreed fee 5) No genuine pre-estimate of loss


Assessor supporting rational for decision
The appellant is appealing the PCN on the following 5 grounds 1) Secure-A-Space have failed to establish keeper liability 2) Contract with Landowner 3) Inadequate Signage 4) This charge is not a contractually agreed fee 5) No genuine pre-estimate of loss The operator states that it issued the Parking Charge Notice (PCN) on the basis that the driver parked in a disabled person's space without clearly displaying a valid disabled person's badge. The appellant is appealing the PCN on the following 5 grounds The appellant states that UK Parking Control LTD have failed to establish keeper liability The operator has provided me with a copy of the notice to keeper sent to the appellant, as it had not identified the driver of the vehicle. The appellant states that the operator failed to comply with paragraph 8, section (2)(a) which very clearly states: specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; Upon reviewing the Notice to Keeper, we can clearly see the name of the land it was parked on, the date of the incident and it has marked the time it issued the PCN. We are satisfied that this includes the required information and we accept that this complies with “PoFA 2012). The appellant states that the operator does not have a contract with the landowner. Section 7 of the British Parking Association (BPA) code of practice requires operators to own the land or to have written authority from the landowner to operate on the land. The operator has provided us with a copy of the contract it has with the landowner Jones Lang LaSalle. We have reviewed the terms and conditions and we accept that it fully complies with section 7 of the BPA code of practise. The appellant states that there is inadequate signage in the car park “Section 18 of the BPA Code of Practice explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand”. The operator has provided photographic evidence of multiple signs that are situated throughout the car park, furthermore the signs clearly state the terms and conditions set out by the operator including the terms for parking in disabled bays. The appellant states that the PCN is not a contractually agreed fee and that there is no genuine pre-estimate of loss. 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. When it comes to parking on private land, a motorist accepts the terms and conditions by parking their vehicle. Ultimately, the appellant has parked within a disabled bay without displaying a valid permit. By failing to do so, the appellant has not met the terms and conditions as clearly outlined at the site. As such, I can only conclude that the operator issued the Parking Charge Notice (PCN) correctly.

TB2013

Was the POPLA response copied directly from your portal page?

Because a lot of that response is a copy/paste of the response they sent me! So far as to even say the operator was Secure-A-Space, and the appeal points I had used! Looks very fishy, as some of the wording has been changed to reflect your PCC and landowner etc. but others have not.

What was the original POPLA appeal / rebuttal you sent in?

taroshm

Yes the response was copied from the Portal page, even I noticed incorrect operator name. Sadly it doesn't give me an option to re-appeal or get clarification on the decision.

My detailed appeal is :

Dear POPLA Assessor,

I am the registered keeper of the vehicle with the above registration number and this is my appeal:
1. It fails to comply with the Protection Of Freedoms Act(POFA) 2012 so there can be no keeper liability.
2. The parking charge is not a genuine pre-estimate of loss.
3. No contract exists with landowner to pursue charges
4. Unclear and ambiguous signage.


1. It fails to comply with the Protection Of Freedoms Act(POFA) 2012 so there can be no keeper liability.
(a) No Notice to Keeper (NTK) has been sent.
(b) Schedule 4 paragraph 8(4) of POFA 2012 stipulates the period by when the NTK has to be served which wasn't done.
(c) In addition schedule 4 paragraph 11 of POFA 2012 also stipulates with reagrds to keepers details that information sought by the application is provided by the Secretary of State to the applicant. This was not complied.

There was no admission as to who was driving and no assumptions can be drawn.

2. The parking charge is not a genuine pre-estimate of loss.
UK Parking Control Ltd claims that the charge is for ‘failure to comply’ with its ‘terms of parking’ and that the vehicle was ‘in breach’, so this operator must prove the charge to be a genuine pre-estimate of 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. UK Parking Control Ltd 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 vehicles breached any terms at all.

The charge of £100, being sought for an alleged breach of the parking terms, namely ‘parked in a permit area without displaying a valid permit’, is disproportionately high. Consequently I contend and the BPA code of practice states, a charge for breach must be based on the genuine pre estimate of loss. The Office of Fair Trading has stated to the BPA that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

3) No contract exists with landowner to pursue charges
The operator does not own the land in question and has provided no evidence that it is lawfully entitled to demand money from a Driver or Keeper. It owns neither proprietary nor agency rights and holds no title or share of the land. I do not believe that it has the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in its own name as creditor. I believe that at best it may hold a site agreement limited to issuing tickets and as such I require that it provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA Code of Practice, this contract must specifically grant the operator the right to pursue parking charges in its own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:
a) Some parking companies have provided ‘witness statements’ instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the operator which would obviously affect any ‘loss’ calculations. Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the operator to pursue charges in its own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was ‘not valid evidence’. If UK Parking Control Ltd provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
c) Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the operator and the Landowner containing nothing that UK Parking Control Ltd can lawfully use in its own name as mere agent that could impact on a third party.

4. Unclear and ambiguous signage.
There are no clear signs in the parking area near the space the vehicle was photographed in. The upright signs that are present in other similar parking bays were missing from the bay where the car was parked. Attaching a photo collage to prove the above.
The first 2 photos are of the area where the car was parked and as you can see there is no pillar signs around those bays. The remaining photos are other bays in the same car park but those have clear pillared signs.

UKPCs own evidence would also prove a very poorly lit parking bay preventing any floor signs to be seen by the driver of the car.

The BPA code of practice February 2014 clearly states that "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".

I assert that being inconspicuous, unable to be read due to height, design, positioning, lighting, font size used and being unlit in the dark, breaches this code.

I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.
The operator also needs to show evidence in the way of a signage map on this point – specifically showing the location of the signs and whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed do not alter the contract, which must be shown in full at the entrance.

I therefore respectfully request that my appeal be upheld and the charge dismissed.

Coupon-mad

The appellant is appealing the PCN on the following 5 grounds
1) Secure-A-Space have failed to establish keeper liability
2) Contract with Landowner
3) Inadequate Signage
4) This charge is not a contractually agreed fee
5) No genuine pre-estimate of loss

The operator states that it issued the Parking Charge Notice (PCN) on the basis that the driver parked in a disabled person's space without clearly displaying a valid disabled person's badge.

The appellant is appealing the PCN on the following 5 grounds The appellant states that UK Parking Control LTD have failed to establish keeper liability.

The operator has provided me with a copy of the notice to keeper sent to the appellant, as it had not identified the driver of the vehicle. The appellant states that the operator failed to comply with paragraph 8, section (2)(a) which very clearly states: specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.

Upon reviewing the Notice to Keeper, we can clearly see the name of the land it was parked on, the date of the incident and it has marked the time it issued the PCN. We are satisfied that this includes the required information and we accept that this complies with “PoFA 2012).

The appellant states that the operator does not have a contract with the landowner. Section 7 of the British Parking Association (BPA) code of practice requires operators to own the land or to have written authority from the landowner to operate on the land. The operator has provided us with a copy of the contract it has with the landowner Jones Lang LaSalle. We have reviewed the terms and conditions and we accept that it fully complies with section 7 of the BPA code of practise.

The appellant states that there is inadequate signage in the car park “Section 18 of the BPA Code of Practice explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand”.

The operator has provided photographic evidence of multiple signs that are situated throughout the car park, furthermore the signs clearly state the terms and conditions set out by the operator including the terms for parking in disabled bays.

The appellant states that the PCN is not a contractually agreed fee and that there is no genuine pre-estimate of loss. 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.

When it comes to parking on private land, a motorist accepts the terms and conditions by parking their vehicle. Ultimately, the appellant has parked within a disabled bay without displaying a valid permit. By failing to do so, the appellant has not met the terms and conditions as clearly outlined at the site.

As such, I can only conclude that the operator issued the Parking Charge Notice (PCN) correctly.




I've separated the decision into paragraphs.

I take issue with POPLA's paraphrasing that I have put in bold which looks like it's a quote from the judgment but is actually PART of the Supreme Court tweet, but changed to include 'practice around the United Kingdom'. That second part is ONLY relevant if taken in context but in fact, it is a broken (out of context) quote from Lord Hodge (I think) at the SC when he actually said that (and now I'm paraphrasing but actually repeating what he did say)! = regimes where parking is offered free and then followed by a charge like £85 are common practice in the UK.

But that's not what this car park is about at all!

Are the signs so clear that the charge of £100 is in large letters? Are the terms VERY clear at the disabled bays that £100 can be the 'charge'? Not just that there are signs there, is the £100 charge actually very obvious there at those bays?

Did they send you 'evidence' at the same time they sent it to POPLA and did you take the chance to add comments?

Finally, what was the reason for parking in that bay?

BiscuitMuncher

TB2013 wrote: »

Was the POPLA response copied directly from your portal page?

Because a lot of that response is a copy/paste of the response they sent me! So far as to even say the operator was Secure-A-Space, and the appeal points I had used! Looks very fishy, as some of the wording has been changed to reflect your PCC and landowner etc. but others have not.

What was the original POPLA appeal / rebuttal you sent in?

TB2013... Agreed, looks very similar to my appeal rejection last week too. I've not compared the two in detail though as reading/writing this on my phone.

taroshm

"Are the signs so clear that the charge of £100 is in large letters? Are the terms VERY clear at the disabled bays that £100 can be the 'charge'? Not just that there are signs there, is the £100 charge actually very obvious there at those bays?"

No

Did they send you 'evidence' at the same time they sent it to POPLA and did you take the chance to add comments?

Yes I got the copy of evidence in Sep but the email from POPLA asking to add comments on the evidence only came recently, about a week prior to this decision. I wasn't able to add comments.
The evidence included there signs (standard text) and letter they sent me rejecting my first appeal to UKPC directly.
The POPLA assessor says he has seen the NTK but I haven't got any NTK, unless this letter above rejecting my appeal is being deemed as an NTK.

Finally, what was the reason for parking in that bay?
The disabled signs weren't clearly visible on the floor (bay) and the posted signs which are present in every other area was not present next to the bay where the car was parked.

Coupon-mad

So there was no NTK in your evidence pack UKPC sent you?

And the £100 on the signs was unreadable, just vague pics of pale white, toally illegible signs elsewhere on site (and maybe a close up library stock picture of wording, or nothing showing what the wording says on those signs)?

Any picture of the sign at the disabled bay? Was it a standard one or a special one about Blue Badges only?

Any proof from UKPC that there was a sign and clear lines at that disabled bay?

Can you show us these images, it would help.

Shocked that POPLA have apparently thought a Notice to Driver (windscreen PCN) was a Notice to Keeper - OMG !!

Redx

taroshm wrote: »

Yes I got the copy of evidence in Sep but the email from POPLA asking to add comments on the evidence only came recently, about a week prior to this decision.

I wasn't able to add comments.

that is why you send an email with your rebuttal as an attached PDF and ask popla to add your rebuttal to the file before the assessor adjudicates it

taroshm

So there was no NTK in your evidence pack UKPC sent you?
No NTK but as mentioned above in the evidence pack there was a letter sent to me by UKPC rejecting my first appeal directly to them. I am wondering whether that letter address to me is considered a NTK.

And the £100 on the signs was unreadable, just vague pics of pale white, toally illegible signs elsewhere on site (and maybe a close up library stock picture of wording, or nothing showing what the wording says on those signs)?

Yes. No clear signs.

Any picture of the sign at the disabled bay? Was it a standard one or a special one about Blue Badges only?

I have pictures but how do I share.

Any proof from UKPC that there was a sign and clear lines at that disabled bay?

No

Can you show us these images, it would help. I have pictures but how do I share.

Shocked that POPLA have apparently thought a Notice to Driver (windscreen PCN) was a Notice to Keeper - OMG !!

Yeah this bit I am not certain as what they think is NTK

bod1467

Upload pictures to Photobucket or similar and post links in a reply here.

As you're a new user you won't able to post working links, so break them ... e.g replace http with hxxp ... and someone will fix them.

As I replied in the POPLA Decisions thread ... how do POPLA correlate a TIME of observation for the PCN with a PERIOD of parking?

taroshm

hxxps://www.dropbox. com/s/u18qaa35111xg6n/Photo%20A.jpg?dl=0