POPLA - Draft letter for review

Umkomaas

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

Massive changes.

POPLA delivery with a new service provider (The Ombudsman Service).

GPEOL - virtually redundant after Beavis.

gareth1971

Further to the above re POPLA appeal.

We have just received notice from POPLA that they have received the evidence pack from ParkingEye and also an email from ParkingEye with a 46 page PDF document.

I have redacted the personal information and made the file available here for anyone who cares to have a look:

https://www.dropbox.com/s/bporu8ml4enmble/Parking%20Eye%20%28Redacted%29.pdf?dl=0
(Click "No thanks. Continue to view" if you don't have a Dropbox account or don't care to sign in to it.)

I have also made some annotations highlighting signage in ParkingEye's evidence that is no longer present and not there since at least Oct 2015 when the Google Street View photos were taken.

We now have 7 days to make comments (2000 characters and no uploads per the web form).

Any further advice would be greatly appreciated.

Coupon-mad

(2000 characters and no uploads per the web form)

Not true. You can email your comments as long as you tell POPLA clearly that they are only comments and NOT added 'evidence'. We never restrict POPLA appeals nor comments to the limited word-count boxes they kindly offer. And comments are easier to read if interspersed with a screenshot of the evidence you are commenting on - like a signage picture, for example. You can't do that on the Portal.

Thoughts for a comments email:

The witness statement has none of this mandatory information at all (the BPA Code says it MUST) and this was in the POPLA appeal:

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.''

And the witness statement fails to identify the vehicle in question at all and doesn't even name the site properly nor identify the boundary of the land operated on - which is crucial here. It just talks vaguely about 'the parking event dated 31.3.16' as if they issued only one PCN that day! But ParkingEye issue dozens of PCNs even at smaller sites like this (and more at larger sites) every day.

The operator has misleadingly made it look like the witness statement and 'whitelist look-up' are one page and have even described 'evidence G' as 'one page' on the summary. This is patently untrue - these are two separate documents, one computer generated and one a template supplied routinely to landowners by this operator. The line between the two documents is visible between the bottom of the 'whitelist' report and the top of the witness statement, proving that they are completely separate items. This landowner has never been presented with any document with a whitelist look-up tacked on the top, as is misleadingly shown here. A whitelist look-up is generated by the ANPR system whereas a witness statement is a template with no mention of the car, event, reason for issue, time, nothing at all to tie that witness statement to this parking event other than the date & location.

ParkingEye have failed to respond to the appeal point that this charging regime at an NHS medical centre site is the deinition of 'unconsionable' because it breaches the Government policy for NHS car parks, which has been in force since 2014 and was updated again in 2015 (as used in the POPLA appeal). It is trite law that if a party remains silent about a point made in a claim or defence (or in this case, formal challenge) they are deemed to have accepted it.

So ParkingEye accept then that this £100 fine/charge is against clear, published Government Policy, as linked in the appeal.

The operator is also silent about the point 'No legitimate interest'. So very silent that they have not even tried to adduce the Beavis case (rare silence on that point) nor even have they made any attempt to explain their commercial 'justification' for breaching Government policy.

Without a 'legitimate interest' argument and without clear, unambiguous signage explaining the terms transparently, they fail (on two fundamental counts) to even meet their own bar set in the Beavis case. POPLA - being independent - cannot make that case or fill in the blanks for the operator.

If a parking charge isn't 'saved' from being a penalty - like in the Beavis case - then it remains a penalty. The Supreme Court confirmed that, stating that the penalty rule was 'engaged' in such a case and it would be 'rare' for a contract not to be judged against the penalty rule by comparison with Lord Dunedin's four tests. This charge fails those four tests, as was stated in the POPLA appeal. The evidence pack is silent on any justification at all so there is no assumed 'legitimate interest' and of course, the Beavis case is not a silver bullet and does not 'supersede' all other arguments re charge - quite the opposite. Other parking charges in other car parks remain unrecoverable 'penalties' if not similarly saved.

More silence regarding the point #4 from the POPLA appeal: ''No Contract Exists in a Trespass Case'' adducing a recent (POST BEAVIS) County court parking charge decision from 2016 where the Judge found that no contract could lawfully exist where parking is only offered to a certain group and not contractually 'offered' to trespassers. The Beavis case supports the appellant's side on this 100% because the Supreme Court remarked that ParkingEye COULD NOT have recovered damages for trespass because they were not in occupation (landowners) and it was not disputed (by Mr Beavis) that a contract existed and a licence to park was granted in his case.

Not here - this is no more than a trespass allegation and ParkingEye have remained utterly silent on how to argue it to POPLA.

They have also remained silent about the point that the entrance sign merely has in the largest lettering, the wholly ambigious phrase: 'patients only' which (it is not disputed) the occupants of the car were. It is also trite law that where terms are ambiguous, the doctrine of 'contra proferentem' applies and the interpretation that most favours a consumer - not the business which drafted the ambiguous sign - MUST prevail in contract law.

This was also in the POPLA appeal the question of how could a patient of the medical centre know they were the 'wrong' type of patient of the 'wrong' medical centre? Cue silence from ParkingEye, about this ambiguity. Any alleged contract has failed on that alone. A patient of the medical centre WAS allowed to park, according to the sign (and 'registering at reception' means to any reasonable person, merely 'reporting to reception' which we did (we 'reported' for an appointment, as patients do!). It conveys nothing about a VRN keypad or any obligation relating to the VRN being recorded nor any risk from not keying in a VRN correctly.

The blue sign* is not there any more; it has not been there for approximately a year - and it was a home-made one by the Medical Centre. We can see that because of the cheap chipboard on the back (in the evidence pack) and the fact it mentioned 'fines'. ParkingEye wouldn't ever have used a sign like that, yet they have 'evidenced' old photos from 2014 in the hope POPLA will take the old blue signs about 'this building' into account too. So the facts are, there was no no sign onsite, since Summer 2015 (a year ago) which clarifies what the boundary is or which medical centre building(s) they are talking about (they are adjacent) except the twisted round single sign, facing AWAY from the entrance which no driver can ever be reasonably assumed to have seen.

The only sign that says “For use by patients of 175 Medical Centre only” could not be seen before parking nor on the route in/out. The amount of signs is minimal (four we think, five say ParkingEye but that includes a disabled bay sign which is irrelevant to this appeal). The car was not parked near the 4 signs. The one that is twisted round has no mention of £100 as a sum so cannot form any contract and would be impossible for a driver to see unless they had eyes in the back of their head. It is trite law that terms communicated after the act of parking is too late to form part of the contract. This was in the POPLA appeal and again, silence from ParkingEye.



* attach an image of it with your comments in red on the picture like you did in the Dropbox file

gareth1971

Thank you very much Coupon-mad for your detailed analysis.

This is a link to the PDF that I will email to POPLA with my comments.
https://www.dropbox.com/s/452av7n0uel8s9i/POPLA%20Comments%20.pdf?dl=0

Any comments would be appreciated before I send it.

Coupon-mad

Yep that will do, can't say much more IMHO.

Send it by email tonight and state clearly in the subject line AND in the body of your email 'Comments on the evidence pack - POPLA code xxxxxxxxxx'.

State in the email that this is not new evidence and is only your 'comments' on ParkingEye's evidence pack, that you could not submit via the POPLA Portal because you needed to add a note to one of the photos from the evidence pack at the end of your comments, and the Portal doesn't allow a picture.

gareth1971

We have just received a decision from POPLA.

What is likely to happen next?

Decision

Unsuccessful

Assessor Name

Adele Brophy

Assessor summary of operator case

The operator advises that the Parking Charge Notice (PCN) was issued as the appellants vehicle parked without gaining the appropriate permit or permission

Assessor summary of your case

The appellant’s case is that she was a patient at the medical centre and that the signs ambiguous.

Assessor supporting rational for decision

After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle at the time of the relevant parking event. The operator is therefore pursuing the appellant as the registered keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in POFA 2012 must be adhered to. The operator has provided a copy of the notice to keeper, after reviewing this I am satisfied that the operator has met with the requirements of POFA 2012. The operator monitors the site using Automatic Number Plate Recognition (ANPR). The operator has provided photographs of the appellant’s vehicle entering the site at 09:32 and exiting at 10:40 following a stay of 1 hour 7 minutes on 31 March 2016. The appellant has questioned the entrance sign at the site. In response to this, the operator has provided photographic evidence of the entrance signs, this 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”. Furthermore, the operator has provided photographic evidence of the signage from within the site this further advises, “Patients must enter their full, correct vehicle registration using the terminal in reception, in order to obtain free parking for the duration of their stay”. From the evidence provided, I am satisfied that the appellant was a patient at the site, however, I am satisfied that the driver had the opportunity to read and understand the terms and conditions on display, before accepting the contract and remaining in the car park. On this occasion, the driver has parked without the vehicle being registered. As such, I can only conclude the operator issued the parking charge correctly.

Redx

you will receive letters telling you to pay up, but the popla decision is not binding upon you

there could be threats of court and even a civil court case (MCOL) within the next 6 years

the ideal solution is a landowner cancellation (it always is and always has been)

Umkomaas

Did they not address your other key appeal points of 'landowner contract with PE' and 'trespass'?

Edna_Basher

Yet another bizarre POPLA decision.

How could the assessor be satisfied that the appellant was a patient at the site when your appeal made it abundantly clear that the driver and passenger were patients at a neighbouring clinic?

Even though you waved the recent case of UKPC v Mr M right under the assessor's nose, she has completely overlooked the point that this was a matter of alleged trespass rather than breach of contract.

I think you need to submit a formal complaint to the Independent Scrutiny Board For Parking Appeals on Private Land (ISPA).

No doubt ParkingEye will be buoyed by POPLA's assessment and are likely to send a Letter Before Claim in due course. It will be useful to try to get evidence from an ISPA audit which in any way discredits this POPLA assessment.

Coupon-mad

Terrible decision.

PE made no attempt to explain the rationale of this charge AFAIK, yet the OP did. The OP pointed out why this charge wasn't saved by the Beavis case, using the NHS Car Parks Govt Policy to show it was unconscionable (not rebutted by PE).

The sign she mentions is the 'back to front' one isn't it, the one drivers cannot possibly read unless their head swivels 360 degrees.