Windscreen ticket on hire vehicle in own spot

bod1467

I'd be tempted to send that letter AND send the complaint anyway - don't wait for their next refusal, just complain to the BPA about MBW's conduct and their breach of the BPA CoP.

Mr_Stroopwafel

Latest update:
I sent the letter and complained to BPA.

Received the following response:

Thank you for your email. You are welcome to submit an appeal as the keeper of the vehicle. You are welcome to either submit a new appeal or inform us to use your initial appeal as that of the keeper, this is a matter for you.

By not naming the driver of the vehicle at the time of the contravention, you, as the keeper, remain liable for the charge.

Kind Regards,


I have appealed as the keeper in their drop down box, but they don't seem to understand this because I wrote 'hirer' which by definition makes me the keeper?

Any advice on wording to get them to hurry up and cancel the charge or issue a POPLA code would be appreciated.

This is what I have:

Dear Sirs,

Thank you for the reply. I refer you to my original appeal, where I selected 'keeper' from your online menu. In addition to this I stated I was the hirer of the vehicle which meant I was the keeper at the time.

For the avoidance of doubt on your part, I am informing you to use my initial appeal as the keeper.

As requested previously, please either cancel this speculative invoice or issue me a POPLA code.

Yours faithfully,

Coupon-mad

That's fine.

Mr_Stroopwafel

That was a quick reply from MBW. They sent me the final rejection along with a POPLA code.

Very odd considering I sent photos of the permit clearly on display in the vehicle.

I'm going to start drafting my POPLA letter but just wondering, can you include evidence such as these photos? Based on those they can't really argue against it.

Thanks

Herzlos

It's virtually impossible to get the parking company to willingly cancel the ticket - there's no incentive to do so.

You should include as much evidence in your POPLA appeal as possible, including evidence that the permit was actually displayed - as you said, MBW would need to try and prove that it wasn't.

You've then got all the usual points about signage, penalties, keeper liability and authority.

Mr_Stroopwafel

Herzlos wrote: »

It's virtually impossible to get the parking company to willingly cancel the ticket - there's no incentive to do so.

You should include as much evidence in your POPLA appeal as possible, including evidence that the permit was actually displayed - as you said, MBW would need to try and prove that it wasn't.

You've then got all the usual points about signage, penalties, keeper liability and authority.

Thanks for the reply, just had a quick check and there's no recent POPLA cases with these lot. Am I fine to just include those points you mentioned as I've not written an appeal post-Beavis case?

Do you think it is also worth including something from the rental agreement in the flat and permission from the flat tenant for the driver to park there?

Mr_Stroopwafel

Thanks for the help so far, here is my first draft of the POPLA appeal.

Would very much appreciate someone giving it a look over and fine tuning anything:

Also I think GPEOL could apply here? As who has lost? No-one except the person who has the right to park here i.e. the tenant and their visitors

---

POPLA CODE xxxxxxxxxx
Alleged Infringement

The Respondent alleges that, on XXXX , the vehicle, registration number XXXX, of which I am the Registered Keeper, was parked at the car park at the xxxxxx Car Park, xxxxxxxxxx in breach of the terms and conditions and as such a Parking Charge of £100 is due.
As registered keeper of the vehicle, I wish to appeal against the parking charge issued by Minster Baywatch Ltd on the following grounds:

1. The alleged offence did not occur
2. Permission granted by tenant and landowner of flat
3. No authority to issue tickets
4. No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)
5. No contract with driver due to Inadequate signage


The alleged offence did not occur
Contrary to the assertions of Minster Baywatch, a permit was in fact clearly on display at the time the vehicle was parked, despite there being no legal basis to issue a parking charge if not doing so. Please refer to the enclosed pictures as evidence of this.

Permission Granted by tenant and landowner of flat
This car park is part of a residential development of flats and can only be accessed by an electronically locked gate, which only tenants and their visitors have access to. As stated previously, permission was granted by the tenant of the corresponding flat, and following from this, the landowner, for this vehicle to be parked in the allocated spot. This overrides any right the Operator may or may not have with the management agency.

I refer you to the enclosed section of the Assured Shorthold Tenancy agreement which also makes no mention of the requirement to display a permit or require any authorisation from Minster Baywatch, only the following terms:

[Not the exact wording but it's these points - will update when I see the AST again]
Park private vehicles only
Park in space allocated to premises
Park in driveway if applicable
Not to leave any vehicles in the allocated bay when you move out, and don't leave any oil or clean up spillages.

No authority to issue tickets
This 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, Minster Baywatch must have assignment of rights from the landowner to pursue charges for breach in their own name - which they do not.

In addition, Section 7.3 of the British Parking Association CoP 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 therefore put Minster Baywatch to provide strict proof to POPLA and myself with an unredacted, contemporaneous copy of the contract between the operator and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights which have been properly assigned to Minster Baywatch.

I refer you to the case at Winchester County Court of R.L Davey v UKPC where UKPC were obliged to pay Mr. Davey a total of £1,430.26 in costs and damages after persistently ticketing his vehicle on his private property (in a residential car park allocated to a flat such as this one) despite his warnings.

This case sets the precedent that Minster Baywatch and other Operators in a residential car park have no right whatsoever to decide the rules which are instituted for the benefit of the tenants and landowners over their own land, in this case the allocated parking space.

The Assured Shorthold Tenancy (enclosed) makes no mention of the requirement to display a permit. Therefore Minster Baywatch have no authority to issue a Parking Charge Notice as the AST supersedes any agreement they might have with a management agency.

Secondly, Minster Baywatch has no permission from the landowner to conduct and operate a business this premises, is not paying business rates to operate on this land, and are therefore illegally running a profit making business on this land.

No legitimate interest in enforcing a charge.

The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from ParkingEye v Beavis. With regards to the location of the car park and the interests of the operator, there is no comparison with the Beavis decision with this being a residential car park.

The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons.
In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge is a penalty. The vehicle was fully entitled to be parked as it was. The only alleged error is that date a permit was allegedly not displayed.

Further to this, this car park can only be accessed with permission from the tenant as there is an electronic key fob to unlock the gates. Therefore the general public are unable to access this private resident’s car park in the same way as that of the Parking Eye vs Beavis case so there is no legitimate commercial interest in enforcing a charge.

The Operator has no legitimate interest in enforcing this charge; their only interest is to seek to profit. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“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 innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in the flat’s own allocated bay where it has every entitlement to. Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

The sum of £100 is not communicated to drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it.

The Beavis decision is not a silver bullet, not for any operator and not for Minster Baywatch. 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 used to strike out the majority of private parking ticket appeals.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team”

The point here is, the new POPLA Service cannot and must not make any wrong assumptions about keeper liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' automatically supersedes all other points of appeal about other parking charges in other car parks.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of this particular charge in this car park with these signs, the Beavis case does not assist them at all.

No contract between driver due to Inadequate signage

The landowner has not sanctioned a contract, therefore has not sanctioned any signage.
Any signage provided by Minster Baywatch is therefore without their approval and consent.

At the time of parking and leaving the land the occupants of the car did not see any signs that mentioned restricted parking.

I require Minster Baywatch to state the height and position of each sign in their response. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. Therefore, it is the fault of Minster Baywatch in the drafting and positioning of the signs that a driver did not see them at all. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of Minster Baywatch and so are not expecting to read a contract.

In dark conditions, in this particular underground unlit car park there is no visible signage, so that in darkness no signs are clearly visible and the words are unreadable. I put Minster Baywatch to prove otherwise; and as well as provide a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no working illumination on site and the sign is not prominent, not reflective and is not lit by headlights. Therefore the sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area.
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

This concludes my appeal, thank you for your assistance. I look forward to your response.

Yours faithfully

Umkomaas

Also I think GPEOL could apply here? As who has lost? No-one except the person who has the right to park here i.e. the tenant and their visitors

GPEOL will win you nothing at POPLA. It might even cause you a loss, because it seems that whenever it is mentioned, just like one of Pavolv's dogs, POPLA Assessors reach for the GPEOL/Beavis button, triggering a template paragraph to include in their 'Appeal Unsuccessful' reply.

Don't let emotion/frustration blur your vision in dealing with this.

Mr_Stroopwafel

Umkomaas wrote: »

GPEOL will win you nothing at POPLA. It might even cause you a loss, because it seems that whenever it is mentioned, just like one of Pavolv's dogs, POPLA Assessors reach for the GPEOL/Beavis button, triggering a template paragraph to include in their 'Appeal Unsuccessful' reply.

Don't let emotion/frustration blur your vision in dealing with this.

You're right it's much better to stay dispassionate about it and thank you, I will forget about that point!

Mr_Stroopwafel

I haven't received an NtK but then I informed them I was the keeper since this is lease vehicle - can failure to correctly establish keeper liability still be an appeal point?

Also, any thoughts on the draft appeal? Trying to make it clear enough for the assessor to pick a winning point but also include enough detail for them to do so.