POPLA - Draft letter for review

Coupon-mad

gareth1971 wrote: »

Sorry if I am being dim, but am I correct in thinking that, in my case I should choose 3 and 5 and ignore 4? Should I also choose 2?

Or just 5 only?

Choose ONLY 'other' and then make sure you upload your photos, your medical appointment showing you were a 'patient' and your PDF appeal (of course!!) as attachments. Check they have all uploaded and that little 'packets' are shown, before moving to the final page to submit the appeal. In the box under 'other' you just put a couple of lines:

I am the registered keeper and my appeal is attached as a PDF. I also show pictures of the signs and location as it appears to a motorist, and proof that I was a 'patient' of the adjacent 'medical centre' which fulfilled the very vague requirements of the entrance sign. The driver of the car has not been identified at any point.

Umkomaas

You need to go through PoFA para 9 of Schedule 4 and pedantically go through every requirement placed on the PPC by that paragraph. If the NtK doesn't comply to the letter, then you must include that in your appeal if you are to argue no keeper liability. Here's the link to the Schedule 4.

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Are 177 and 175 connected in terms of the work they carry out? Can 177 put your case to 175 and ask them to intervene on your behalf and get this cancelled? You can do this after you've sent off your POPLA appeal - don't hold that back even if you get positive vibes from 177.

If you weren't supposed to park at 175, you were in fact a trespasser and it is the landowner who has the right to pursue you for damages, not the PPC. And those damages would be exactly that - the amount of damage you created in your act of trespass (for example if you broke a lock to get through a gate). In trespass cases the award of damage is usually minimal - certainly not £100.

Read this latest court case from the Prankster's blog where 'Permit Only' parking was breached. Try and build the potentially persuasive court decision into your appeal.

http://parking-prankster.blogspot.co.uk/2016/05/bargepole-spanks-ukpc-in-court-no.html

I realise this is all added pressure but you do need to make the best fist of this as possible to try to kill this now. You must get it off to POPLA (do not fail to do that under any circumstances), and by covering this in your appeal, even if you lose it may make PE think twice about risking a court case where a defendant has unearthed a possibly difficult issue for them to handle.

Sorry, but this is all part of the game you've been sucked into.

Coupon-mad

Can 177 put your case to 175 and ask them to intervene on your behalf and get this cancelled?

No, not here, Umkomaas. The two buildings are separate but the OP is right that the signs are ambiguous, loads of people do not realise they have apparently been 'the wrong kind of patient' at the 'wrong' NHS centre until it's too late.

177 has no sway on this at all; they can't assist but loads of their patients get caught out.

And in fact the land at 175 is privately owned by a landowner who signs the witness statements, not even '175' themselves.

The correct medical centre will only intervene if the person had their appointment at the 'right' building and not otherwise; they have been known to be quite rude. My local knowledge helps and I think the Practice Manager is called Cheryl Palmer but she WILL NOT HELP someone who she judges harshly to have gone to the wrong 'clinic'. The lady appears to be totally taken in by ParkingEye and was reported as being 'rude' and laughing at an elderly cancer patient caught by this scam (although I wasn't there myself so this is hearsay but why would ordinary people make it up?).

So, POPLA it is for this OP but the case about the signs is a strong one. IF POPLA SEE IT!

Umkomaas

Thanks Coupon. Brighton is a long way from where I am usually!

gareth1971

I will submit my appeal including letter and supporting photos tonight as the deadline is the 27th. Any further comments would be appreciated.

I have made amendments as suggested above by Coupon-mad and Umkomaas and DollyDee. Thank you very much for your help.

I have added a new section 4. No Contract Exists in a Trespass Case

Here are my final photos that I will be submitting with my POPLA appeal letter:
http://imgur.com/a/R1yM1

I am also submitting the appointment letter and NTK, but not sharing those publicly.


[Notes on submission: Choose ONLY 'other' and then make sure you upload your photos, your medical appointment showing you were a 'patient' and your PDF appeal (of course!) as attachments. Check they have all uploaded and that little 'packets' are shown, before moving to the final page to submit the appeal. In the box under 'other' you just put a couple of lines:

I am the registered keeper and my appeal is attached as a PDF. I also show pictures of the signs and location as it appears to a motorist, and proof that I was a 'patient' of the adjacent 'medical centre' which fulfilled the very vague requirements of the entrance sign. The driver of the car has not been identified at any point.]

DRAFT POPLA LETTER

This is my appeal:

Background

Please see attachments:

Appointment-letter.jpg
NTK.jpg


The Parking Charge Notice and rejection letter both refer to “175 Medical Centre Patients, Brighton” which is not an actual address.

I am assuming that the PCN is referring to “Beaconsfield Medical Practice, 175 Preston Road, Brighton, Brighton and Hove, BN1 6AG” as the parking signs at that address have the same partial address in their wording “For use by patients of 175 Medical Centre only”.

I am the registered keeper and my appeal is regarding an incident where my car was parked in a car park that had free parking, no pay and display and no time limits.

The signs in this car park are easily missed and both the driver and passenger were left unaware of any contravention.

There are 2 large buildings next to each other at 175 and 177 Preston Road, Brighton. Both have cars parked at the front. Both are NHS buildings and both can be reasonably described as "Medical Centres" or "Clinics" and both have "patients".

It is not disputed that I was certainly a ''patient'' (evidence attached of my appointment at the adjacent NHS Building).

We relied upon the entrance sign allowing parking for 'patients' which had no caveat except to 'register' at reception. Well, we did 'register' by reporting at the appropriate reception where our appointment was made. No location was stated on that entrance sign and neither did it mention inputting or recording a number plate at a particular reception desk or keypad. No other meanings of 'patient' or 'register at reception' or 'medical centre' can be inferred from that entrance sign and under the trite law doctrine of contra proferentem, the interpretation that most favours a consumer must apply. And that interpretation would reasonably allow a patient of either medical centre to park without any charge as long as they report to reception - which we did.


1. Unclear, inadequate and badly placed signage at the entrance and throughout the site

There are 4 parking signs in the car park outside 175 Preston Road. One at the entrance. One at the exit and 2 either side.

Please see attachments:

175-177.jpg
Entrance-Sign.jpg
Warning-Sign.jpg
Left-Side-Sign.jpg
Right-Side-Sign.jpg
Side-Sign-Close.jpg
Side-Sign-Very-Small-Print.jpg


i) Entrance Sign

At the entrance there is one sign that cannot be read when approaching by car and I put this operator to strict proof of how the entrance to the clinic appears from a car.

When approaching the entrance to 175 Preston Road from the north the driver is turning right across the path of on-coming traffic on a busy road and across the path of pedestrians walking along a busy pavement. There is also a low wall either side of the entrance to avoid.

No driver could be reasonably expected to read this sign when entering:

a) From the other side of the road, the entrance sign is too far away to be read when waiting for a gap in the incoming traffic and waiting to avoid pedestrians.
b) When turning in, coming towards the sign the drivers attention must be on minding the on-coming traffic and the pedestrians and the entrance walls and any cars exiting.
c) When close enough to read, the sign is so high (approx 3m) that it is out of the view of the driver of a normally sized car passing by.
d) Stopping to read the sign would obstruct the pavement and the sign is so high that it cannot be read from the driver's seat.

The entrance sign states "Patients Only - All medical centre patients must register at reception - This car park is private property, see signage in car park for terms & conditions"

Even studying this sign carefully it does not mention "Beaconsfield Medical Practice, 175 Preston Road" and as we were attending a medical centre at 177 there was nothing on the entrance sign to make us think we could not park in the car park beyond that sign. We could not have known that the sign did not apply to us as 'patients' attending the adjacent NHS medical centre, nor that the vague words: 'register at reception' created any more obligation than just that. There was certainly nothing communicated about inputting our VRN and crucially, nothing about a parking charge of any amount, let alone £100.

You can see the sign and the two NHS Buildings in the photo that I have uploaded as an attachment named 175-177.jpg


ii) Warning Sign

This oddly-positioned (twisted around?) sign states "Warning - This car park is for patients attending an appointment at 175 medical centre only - Failure to comply with the terms & conditions depicted on the signage may result in a parking charge notice being issued"

But this sign setting out a (far too late to form part of any contract) "Warning" is only noticeable when leaving the car park after the fact of any alleged "Failure to comply..." so is pointless and egregious. Further, that sign was not even seen before parking but it does not state the £100 charge as a figure. Even a driver who happened to look back 180 degrees over their shoulder and read that sign before parking would not be reasonably deemed to have 'agreed' to pay any sum at all. In the ParkingEye Ltd v Beavis case, it was held (as regards the signs) that Mr Beavis had agreed to pay £85 because that sum was in the largest lettering, clearly and prominently displayed on simply and unambiguously-worded signage, displayed all over the car park - including at the entrance - showing the £85 and clear terms of the licence to park. Not so here.


iii) Side Signs

These signs are placed close to the front edge of the parking spaces and on high poles (approx 2.5m) so that when exiting from a vehicle the driver will be unlikely to notice the closest sign because it is way overhead and the sign on the opposite side will be too far away to read even the larger type. The small print is too small to be read without being very close.

There is nothing about VRNs being captured by ANPR at the point of entry; nothing about how the ANPR data will be used.





2. No standing or authority from the landowner to enforce this charge/this contravention

The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.

I suggest that ParkingEye are certainly not empowered by the NHS Trust to sue patients and visitors for parking in an NHS car park (that provides free parking) that is very close to an NHS building where the patient has an appointment.

In addition, Section 7.3 states:

“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.''

I put ParkingEye to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about entering a registration number in a terminal which was not used.


3. No legitimate interest - this charge is not like that in the Beavis car park/contract.

The signs state “For use by patients of 175 Medical Centre only”. Leaving aside the fact that “175 Medical Centre” is not an actual place, neither the keeper, nor the driver are patients of the medical centre located at 175 Preston Road Brighton, therefore no contract is created with the driver who was attending the medical centre at 177.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.

There is no commercial justification for an agent of an NHS Trust to profit by disproportionately fining a visitor to a NHS building for parking in the closest NHS car park that offers free parking.

Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:

https://www.gov.uk/government/publications/nhs-car-parking-management-htm-07-03

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

''Charges should be reasonable for the area.''

''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

''NHS trusts should publish:

- their parking policy
- their implementation of the NHS car parking principles
- financial information relating to their car parking
- summarised complaint information on car parking and actions taken in response''

''Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

Contracts should not be let on any basis that incentivises additional charges.''

''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

None of the above was the case with this NHS Trust/ParkingEye. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests.


4. No Contract Exists in a Trespass Case

With reference to "Case B6QZ4H3R, before Deputy District Judge Ellington, UKPC v Mr M." where 'Permit Only' parking was breached.

In the judgement for the case referenced above the judge stated "the signage displayed clearly only made an offer of parking to permit holders, and therefore only permit holders could be bound by the contractual terms conveyed. The circumstances of this were different from Beavis, and therefore that ruling did not assist the claimant in this case.

Any remedy for parking without a permit could only lie with the freeholder, under a tort of trespass. But that wasn’t being claimed here, and as the present claimant has no cause of action, the claim is dismissed."

In the case under appeal here, if a driver was not supposed to park at 175, they were in fact a trespasser and it is the landowner who has the right to pursue for damages, not the PPC. Such damages would be exactly that - the amount of damage created in the act of trespass. In trespass cases the award of damage is usually minimal - certainly not £100.


5. Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012

The registered keeper is submitting this appeal and ParkingEye do not have the identity of the driver.

ParkingEye have failed to correctly and unambiguously notify the registered keeper why the parking charge is due, as is required by the Act. The PCN indicates that the vehicle supposedly was not authorised at all. The Act states that the reason for the charge must be included in a Notice.

The PCN does not specify the "the relevant land on which it was parked ". The PCN refers to “175 Medical Centre Patients, Brighton” which is not an actual address.

The PCN states "Date Issued: 06/04/2016" but was not delivered until 14th April 2016. This evidence suggests that the PCN was not issued on 06/04/2016 but more than 1 week after that date and therefore does not "specify the date on which the notice is sent".

This operator has failed to comply with the following requirements of the Act and consequently cannot rely on its provisions for keeper liability:

''9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable.''

...

(i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

As ParkingEye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act cited above, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver and there is no lawful way I can be held liable as registered keeper.

Umkomaas

Great job @ gareth1971. You've done really well to assimilate and integrate the trespass point so quickly and seamlessly.

Send it off and let us know how it goes. This time last year I'd put my house on it succeeding, but it's a bit more of a lottery with new POPLA.

But you've marked your territory with the trespass reference to help ward off a small claim should this not succeed at POPLA.

I look forward to hearing the result - don't forget, if it doesn't go your way, the result is not binding on you.

Edna_Basher

Hi gareth1971

Just in case you were planning on posting your POPLA appeal, you've quoted the old London Councils address in your opening post:

Parking on Private Land Appeals
PO Box 70748
London
EC1P 1SN

"New" POPLA's postal address is PO Box 1270, Warrington WA4 9RL.

If you're submitting the appeal online (at POPLA.co.uk), you need to beware of a number of flaws in POPLA's website.

These include a text box which allows you to enter an appeal of no more than 2,000 characters. This means that you'll have to save your appeal in PDF form before uploading it.

gareth1971

So the appeal has been submitted on-line.

I will report back once I hear something. Either in celebration, or to check in for further advice.

It has been an education. I am relieved that this stage is over. Getting the appeal done was definitely outside of my comfort zone.

Thanks again for everyone that helped.

Coupon-mad

That was a very nicely put together work of art with the trespass point well argued as an addition - let's hope POPLA appreciate it, or PE back off. We have seen them cancel early doors without contesting sometimes, rather than let POPLA read the incriminating stuff about the Government's NHS Parking Policy.

Your comfort zone was tested but that was worth doing well.

Double_V

Edna_Basher wrote: »

Hi gareth1971

Just in case you were planning on posting your POPLA appeal, you've quoted the old London Councils address in your opening post:

Parking on Private Land Appeals
PO Box 70748
London
EC1P 1SN

"New" POPLA's postal address is PO Box 1270, Warrington WA4 9RL.

If you're submitting the appeal online (at POPLA.co.uk), you need to beware of a number of flaws in POPLA's website.

These include a text box which allows you to enter an appeal of no more than 2,000 characters. This means that you'll have to save your appeal in PDF form before uploading it.

I experience that when I helped my FIL submit appeal.
Luckily I had saved all files as .pdf and uploaded them in the provided space.

Has POPLA changed their business way ?
Address is changed, we no longer allowed to used GPEOL ?