Exceeded 4hr free parking - disabled

CAPPELLA_2

My wife’s car was caught by an ANPR camera for exceeding a 4hr free parking by 23min at a retail park.
She is disabled and has a Blue Badge and is very slow shopping and needs to rest regularly. The car was parked in a disabled bay.
Horizon sent the Parking Charge Notice through the post.
We appealed to Horizon quoting the out of date 16.5) If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices and current Disability Discrimination under the Equality Act.2010
We received a rejection and a POPLA no.

I wonder if someone could comment on my draft POPLA below.


TO POPLA

POPLA REF xxxxx
PCN Ref xxx


Name: xxxx
Address: xxxxx


E mail xxx

Date Feb 2017 xxxx

Without prejudice, except as to costs

Parking Charge Notice Letter xxxx
On 01/02/2017 I was the registered keeper of a Hyundai I30 x.

I would like to appeal your parking charge as I feel that this charge is not valid due to the circumstances listed below, I should be grateful if you would first answer all the questions and deal with all the issues I have set out below. Once you have done so, I will be able to make an informed decision on how I deal with the matter.

Please note that although I dispute the whole basis of the parking charge, my main concern is its disproportionate and punitive level.

The keeper of the vehicle is a disabled person and a Blue Badge holder and the vehicle was parked in a disabled bay with the Blue Badge on display. No information re allowed parking time was visible from the disabled parking bay,

The allegation appears to be an overstay by 23 minutes, timed by their ANPR camera at the entrance and exit. However, there is no evidence of actual parking beyond four hours and the extra few minutes is explained by the longer time it takes me to get in and out of the car safely with assistance, plus the time to read your signage and travel in/out of the car park.

The Equality Act 2010 says that providers of services to the public must make reasonable adjustments to remove barriers which may discriminate against disabled people.

You and your staff also need to realise that some disabled people may take a long time.

You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action

1. No contract
There was no contract between the driver and Horizon Parking. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

2. Trespass
If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.

3. Punitive/unfair/unreasonable charge
Even if there was a contract (which is denied), the following matters are relevant:

3(a). Punitive
The parking charge you are imposing is punitive and therefore void (i.e. unenforceable). The £70 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.


3(b). Unfair
The £70 parking charge you are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):


‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’

And 5(2), which states:

‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

3(c). Unreasonable

The £70 parking charge you are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:


‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

Further information I require you to provide and take notice of:


Please note specifically that this letter is not an appeal however, it is a challenge to the issue of the Notice to Keeper (delete as appropriate) as set out in the BPA AOS Code of Practice B.22. I should be grateful for answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct.

4(a). Cause of action.


Please make this clear. If it is your claim that the driver entered into a contract, please send me a complete version of the terms and conditions of that contract to which you say the driver agreed to.

4(b). Further to the above please explain fully on which of the following grounds your claim is based:

(i) Damages for trespass
(ii) Damages for breach of contract
(iii) A contractual sum


5. Your loss.

If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual loss you say was suffered by your business or the landowner/landholder.

6. Appeals procedure.

I require a copy of any appeal procedure you follow, along with details of what factors you take into account; who is the judge or arbitrator and whether they are independent; whether you require oral or written submissions; whether it is governed by the Arbitration Act 1996 and any other relevant factors. In addition, please give me disclosure of any arguments you would put forward on this matter in any subsequent appeal process so that either the registered keeper or the driver might consider his or her response to any existing or new issues which are raised.

7. Your status.

Your Notice to Keeper simply mentions Horizon Parking. Please tell me who is the actual creditor making this £70 parking charge demand. I need to know exactly who is making the claim and in what capacity.

8. Ownership of premises.
Please tell me who owns the car park as I wish to send them a copy of this letter.


9. Contract to operate.
Please provide me with a copy of the contract between your company and the landowner/landholder.


10. Involvement of landowner/landholder.
Please explain any involvement, if at all, of the landowner/landholder with the management of parking at this site and specifically with regard to the issue and enforcement of your Notices to the Keeper.
11(a). Photographs- handling.
Your notice refers to ‘photographic evidence’. Please send me a copy of your procedures for handling and processing that evidence and the relevant audit trail. Furthermore, under section 7 of the Data Protection Act 1998 please send me a copy of all such photographs along with a copy of all other data you hold relating to me. As this would be required to be disclosed in any event as part of your evidence bundle in the small claims process, I do not expect to pay for the release of my personal data which you hold.


11(b). Photographs – evidence.
The copies of the photographs that you have provided along with the Parking Charge Notice merely show my vehicle entering and leaving the car park but do not show the actual alleged parking contravention on which your Parking Charge Notice has been issued. Please therefore provide me with copies of all photographs that evidence the actual alleged parking contravention itself

12. Signage.
If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.


13. Legal representation.
Please provide me with the name and address of your solicitors, if any, in order that I may copy them into this correspondence.

14. To avoid doubt, please do not do any of the following:
(i) Send any further correspondence or documents to me or try to communicate with me in any way except to address in writing the specific points I have raised in this letter.
(ii) Send me any document purporting to be from the county court unless it is a valid claim form duly issued.
(iii) Write to me threatening to send bailiffs to my address without first issuing a court claim form and obtaining judgment.
(iv) Send me any standard letters from your company or debt collectors.


15. If you wish to make a claim you may do so online. My address for service is set out at the top of this letter. If you do decide to issue proceedings, please note that:
(i) I reserve the right to add further arguments to the defence
(ii) I or my representative will be happy to attend any court mediation that might be offered.


16. I look forward to receiving your acknowledgement within 14 days and a comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I shall respond to your Notice to Keeper.


17. If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.


Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.


Many Thanks

Half_way

First, why use the without prejudice, save as to costs line?

Fruitcake

You would be better using the template appeal points from post 3 of the NEWBIES thread. These cover inadequate signage, not the landowner, no standing to issue charges in their own name, non POFA compliant NTK (if the driver' identity hasn't been revealed,) and Grace periods. Then add in that the BPA CoP should allow disabled motorists more time.

You have implied who might have been the driver when you mention the person who takes more time AND was the person reading the signs.

You have a mixture of an appeal to the parking company and PoPLA. For example, items 13 - 17 are aimed at the parking company, not the PoPLA assessor.

You also refer to things like Your signs, when in fact you should be telling the PoPLA assessor about the parking company's signs.

All in all, it is not a good attempt at an appeal and you will most likely lose.

Coupon-mad

I wonder if someone could comment on my draft POPLA below.

Looks like a bad template, an old one (includes stuff about loss). Bin it and start again using the templates in post #3 of the NEWBIES thread.

twhitehousescat

We appealed to Horizon quoting the out of date 16.5) If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices and current Disability Discrimination under the Equality Act.2010

bloody clever ANPR cameras ? , OR ANPR is not suitable for blue badge holders


as they have failed to take account of the act when processing your appeal , you must now cause them severe grief with regard to equality

Redx

also COMPLAIN in writing to the RETAIL PARK M A or landholder/owner and mention the EQUALITY ACT 2010 and a possible counter claim for breaking that law , insist that the only remedy is a cancellation of this notice and also insust that the VRM will be added to a whitelist of exempt vehicles so it does not happen again