Help Popla appeal failed

Chirop53

Hi I'm a newbie and seeking help .. I've read the newbie posts well scanned as best as I can and can't find a case like mine .
Here goes ... I received a parking fine from Parking Eye from parking at Bradford Forster Square retail park on 31/03/17. The fine is because it stated I has stayed over the 3 hours which is allowed ( this is free no payment machines ) . I arrived at 10.48 and left 14.29 . The overstay occurred due to me returning to my car to leave at approx 13.15 and finding my tyre on the passenger front side completely flat .. Was actually pointed out by a member of the public . There was no way I could drive the car it would have been dangerous and I'm sure illegal ! Being female and on my own I phoned my husband to come and sort it out . Managed to get hold of my husband at around 13.30 and he had to leave where he was working 10 miles away to come and help , it took about 40 minutes to arrive. Whilst waiting I contacted a skin clinic I had an appointment with to cancel my 14.00 apt explaining the situation ,I did this by phone and text msg . I also messaged my daughters saying I was stuck . I even had to buy a car charger in Asda as my phone battery was dying ! I have evidence of the calls / texts with dates still in my phone . Once my husband arrived he inflated the tyre and we then left the carpark in convoy , him following just in case I had a problem . Made my way to Bingkey to my local garage where the tyre was then repaired .
I wrote to Parking Eye explaining the situation thinking in my naivety that I had a genuine mitigating reason beyond my control . They wrote back 27/04/17 saying " you advise you had difficulties with your vehicle please provide evidence " etc . I wrote back explaining again and sent printouts of the text messages between my daughters and clinic , my husband also wrote a letter explaining if they checked cameras etc . Letter came back 30/05/17 saying I had not sent evidence so failed internal appeal , I then got another letter 06/06/17 saying my appeal was rejected to Popla.
I contacted Popla as suggested by email and uploaded evidence ie photos of msgs with dates and also the skin clinic had sent an email for me to forward which showed I had contacted and cancelled due to my flat tyre . Popla contacted after a short time saying being assessed then to say operator didn't provide case summary . I then added further comments reiterating that this whole situation was beyond my control .
I heard back from Popla on Wednesday evening the 19th July to say my appeal was unsuccessful. Reasons being I outstayed the 3 hours and although I had problems with my car I didn't comply with the terms and conditions of said car park.
I am fuming to say the least , so would really appreciate some advice/ help of what I should do next . The fine is £85 .. Do I pay ?
Thanks in advance , I genuinely feel I have mitigating circumstances and realise I should have come on here first , but I thought it would be accepted .. Hindsight is a wonderful thing !!

Coupon-mad

Same as the one I just linked here, except they tried a detailed appeal and still lost (v Indigo) and yours is ParkingEye and a flat tyre:

https://forums.moneysavingexpert.com/discussion/4488337

Do not pay, if a case is lost at POPLA.

The overstay occurred due to me returning to my car to leave at approx 13.15 and finding my tyre on the passenger front side completely flat .. Was actually pointed out by a member of the public .

Send a complaint to the landowner/site agent of the entire site, with your proof and emails. You said 'also the skin clinic had sent an email for me to forward which showed I had contacted and cancelled due to my flat tyre' so ask the landowner/site agent exactly who is controlling their rogue parking operator and why on earth did PE not cancel under these circumstances?

Demand that they cancel it. You can find out who runs any retail park, by Googling. Easy.

I doubt PE will take this one to a small claim.

You may just get Equita 'debt' letters which can be ignored. If PE try a small claim or send an LBCCC you must respond and you would have good chances of success in a proper court hearing, IMHO. This does not affect your credit rating until/if you lost in the end at a hearing AND then failed to pay the £175 or so, within 30 days of judgment. No big deal and worth fighting if they try.

Anyway, direct your anger at the site managers and do not accept the usual 'we've asked PE and they ''can't cancel'' as it's been through ADR'.

NOT TRUE. Reply if they say that, and tell them this is not true at all and they are in control of their agent not the other way around, and you will take it to your MP and the local paper. After all, the skin clinic already asked PE to cancel, BEFORE POPLA, and it was PE's aggressive decision to refuse.

And DO take it to your MP asap, now. PLEASE.

Half_way

Contacts here: http://www.forstersquare.co.uk/community

please when dealing with them, do not use the word fine

Post on here what you intend to send to them before you send it, it would also be helpful if you could post your rejected POPLA challenge

Guys_Dad

Your problem is you have no proof that your tyre was flat. No photo of flat tyre, husband fixing it etc so you could have made up the story. Unless you have the bill from the garage, which would help. A visit from the AA/RAC/Green Flag with their incident report would have been much better, but not applicable in your case.

In the absence of any proof, you would need to rely on failures of the PPC (signs, poor t&c etc etc) so check them out.

Chirop53

Thank you all for getting back to me , will do what you have all suggested . Will email MP and put other stuff on here first . I will also contact garage for proof
Determined to fight this !

Half_way

Your problem is you have no proof that your tyre was flat.

Phone logs, Husband as a witness, possible receipt/card transaction on bank statement regarding tyre repair, text messages sent to clinic, text and other phone logs, phone tracking logs ( google maps history/apple maps) all adding weight to the flat tyre incident.

Far more persuasive than a camera on a stick recording reg numbers in/out ( most of the time)

again contact the landowner, but post on here before you send anything

Chirop53

I have emailed my MP more or less the same as I wrote above removed the word fine and used parking charge . Now about to write something for the centre manager of foster square will post on here first though as I am inclined to ramble ... And will probably need some guidance
Also will try to copy and paste the Popla stuff ( am not very techy minded )

Half_way

have a quick look for something called "frustration of contract" which should cover things such as breakdowns and other matters beyond reasonable control that could lead to you being delayed in a car park

Chirop53

Operator Information and Evidence
Submitted 28/06/2017
We have received your comments and we will begin your assessment in due course

Verification Code
XXXXXXXXXX

Operator Name Parking Eye Ltd
Operator Case Summary
The operator didn't provide a case summary

POPLA assessment and decision
19/07/2017
Verification Code

XXXXXXXXXX

DecisionUnsuccessful
Assessor NameLouise Dack
Assessor summary of operator case
On 31 March 2017 vehicle XXXXXXX was issued with a Parking Charge Notice (PCN). This PCN was issued due to the motorist parking for longer than the maximum stay time.

Assessor summary of your case
The appellant states that they could not leave the car park any earlier due to having a flat tyre and having to wait for their husband to attend and inflate this allowing them to move the vehicle. They say that they were attending a clinic on the day of the contravention and had to cancel this due to the incident.

Assessor supporting rational for decision
When entering private land where parking is permitted, you are entering into a contract with the operator by remaining on this land. The terms and conditions of this land should be displayed around this area. It is essential that these terms are adhered to in order to avoid a PCN; it is the responsibility of the motorist to ensure that this is the case. The terms and conditions shown on the photographic evidence provided by the operator state ‘’Customer parking only…3 hours max stay…£85 parking charge…Failure to comply with the terms and conditions will result in the above charge.’’ A PCN has been issued for the following reasons: the appellant has parked for longer than the maximum stay time. In section 18.1 of the British Parking Association (BPA) Code of Practice it states that ‘’In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be aware of from the start.’’ The operator has provided photographic evidence of the signage on site, including entrance signs which signpost the motorist to the full terms available within the car park. On looking at the evidence provided, I am satisfied that these terms have been displayed clearly and sufficiently. The appellant states that they could not leave the car park any earlier due to having a flat tyre and having to wait for their husband to attend and inflate this allowing them to move the vehicle. They say that they were attending a clinic on the day of the contravention and had to cancel this due to the incident. Whilst I note the appellant’s comments, the terms and conditions of the car park still apply. The signage in and around the car park clearly states that the maximum stay time is three hours. The car park is monitored by Automatic Number Plate Recognition (ANPR) this system has captured the appellant’s vehicle entering site at 10:48 and leaving at 14:29 after completing a parking session of three hours and 40 minutes. I acknowledge the evidence provided by the appellant, however in this instance they have remained on site for 40 minutes longer than the maximum stay time. As a result, they have breached the terms and conditions of the car park. When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. Even if a motorist presents circumstances setting out reasons why they did not keep to the parking conditions, POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. It is the responsibility of the motorist to familiarise themselves with the available signage on site and ensure that their parking complies with the applicable terms and conditions before leaving their vehicle unattended on site. Upon consideration of the evidence, the appellant has parked for longer than the maximum stay time. As such, they did not comply with the terms and conditions of the car park, and I can only conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.


This is the Popla rejection

Coupon-mad

To rattle POPLA's cage I would email their complaints email addy (see website) and link their Annual Report 2016, refer them to page 12:

http://www.popla.co.uk/docs/default-source/default-document-library/popla-annual-report-2016.pdf?sfvrsn=2

and quote:

''We often receive appeals that a motorist was unable to keep to the conditions at a car park because of mitigating circumstances. Examples are illness or injury which delay a motorist’s return to the vehicle, or a vehicle breakdown meaning the vehicle is unable to leave the car park.
POPLA is not able to allow an appeal based on mitigating circumstances.

ISPA’s independent assessors reviewed a number of cases on which mitigation was the main reason for appeal. They questioned why we had not referred the cases back to the parking operators. Our rationale was that the mitigating circumstances had already been submitted to the operator by the appellants. The independent assessor’s view was that in many of the cases, the operators had not specifically responded to the mitigating circumstances in their appeal responses.

They suggested we could not be sure that the parking operator had given reasonable consideration to the mitigation.

After considering this feedback, we changed our position.

We began referring mitigation cases back to operators where we considered it reasonable and where the operator had not clearly demonstrated that it had already given reasonable consideration to the mitigating circumstances.
In the last year, our assessors have referred 120 appeals back to parking operators due to mitigation. Of those cases, the parking operators agreed to cancel the parking charge in 108 cases.''

Ask whether this Assessor is unaware that POPLA has ''changed its position'' because her decision suggests she has missed the above 2016 policy change:

The appellant states that they could not leave the car park any earlier due to having a flat tyre and having to wait for their husband to attend and inflate this allowing them to move the vehicle. They say that they were attending a clinic on the day of the contravention and had to cancel this due to the incident.

Whilst I note the appellant’s comments, the terms and conditions of the car park still apply.

I acknowledge the evidence provided by the appellant, however in this instance they have remained on site for 40 minutes longer than the maximum stay time. As a result, they have breached the terms and conditions of the car park. When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. Even if a motorist presents circumstances setting out reasons why they did not keep to the parking conditions, POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions.

Whilst the Assessor may be right that she cannot allow the appeal, why did she not take the reasonable policy step for cases of breakdown (which a flat tyre certainly falls under) and refer the case back to ParkingEye with a recommendation that they cancel, given the fact that she acknowledges the evidence the appellant produced and given the 'new policy' from POPLA's learning from ISPA.

Finish by asking for the case to be referred to the Lead Adjudicator who wrote the Annual Report, not to overturn the decision but to decide if the Assessor failed to follow policy published in the 2016 Report, to decide whether she should in fact have returned the case to PE with a recommendation that they revisit the mitigating circumstances and cancel the charge.

After all, POPLA can still do that as you are not asking for the decision to be changed, you are saying they have not applied their own policy to a clear case of mitigation where the Assessor has admitted there is evidence but had said 'Whilst I note the appellant’s comments, the terms and conditions of the car park still apply.' yet has failed to take the extra step POPLA says it will under such circumstances. It's not as if PE has demonstrated significant consideration of the mitigating circs - in fact, they sent their template rejection letter seen day in, day out. And in any case, regardless of this, the annual Report makes it clear POPLA has reversed that policy anyway and 'refers cases back to the operator anyway' as directed by ISPA last year.

Chirop53

This is my letter to Popla complaints
Dear Sir
POPLA ref:

I am writing regarding my recent unsuccessful appeal to POPLA regarding a parking charge from ParkingEye in Bradford Forster Square on 31/03/17 due to an overstay in said carpark . This was due to a flat tyre something completely out of my control and was unable to leave the carpark until the situation was resolved . This in my opinion was a mitigating circumstance and should have been referred back to ParkingEye .

I refer you to your Annual Report 2016, page 12:

( email add here !)

and I quote:

''We often receive appeals that a motorist was unable to keep to the conditions at a car park because of mitigating circumstances. Examples are illness or injury which delay a motorist’s return to the vehicle, or a vehicle breakdown meaning the vehicle is unable to leave the car park.
POPLA is not able to allow an appeal based on mitigating circumstances.

ISPA’s independent assessors reviewed a number of cases on which mitigation was the main reason for appeal. They questioned why we had not referred the cases back to the parking operators. Our rationale was that the mitigating circumstances had already been submitted to the operator by the appellants. The independent assessor’s view was that in many of the cases, the operators had not specifically responded to the mitigating circumstances in their appeal responses.

They suggested we could not be sure that the parking operator had given reasonable consideration to the mitigation.

After considering this feedback, we changed our position.

We began referring mitigation cases back to operators where we considered it reasonable and where the operator had not clearly demonstrated that it had already given reasonable consideration to the mitigating circumstances.
In the last year, our assessors have referred 120 appeals back to parking operators due to mitigation. Of those cases, the parking operators agreed to cancel the parking charge in 108 cases.''

Can you tell me whether this Assessor is unaware that POPLA has ''changed its position'' because her decision suggests she has missed the above 2016 policy change:

“
The appellant states that they could not leave the car park any earlier due to having a flat tyre and having to wait for their husband to attend and inflate this allowing them to move the vehicle. They say that they were attending a clinic on the day of the contravention and had to cancel this due to the incident.

Whilst I note the appellant’s comments, the terms and conditions of the car park still apply.

I acknowledge the evidence provided by the appellant, however in this instance they have remained on site for 40 minutes longer than the maximum stay time. As a result, they have breached the terms and conditions of the car park. When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. Even if a motorist presents circumstances setting out reasons why they did not keep to the parking conditions, POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions.
”
Whilst the Assessor may be right that she cannot allow the appeal, why did she not take the reasonable policy step for cases of breakdown (which a flat tyre certainly falls under) and refer the case back to ParkingEye with a recommendation that they cancel, given the fact that she acknowledges the evidence that I had produced and given the 'new policy' from POPLA's learning from ISPA.

I am therefore asking for the case to be referred to the Lead Adjudicator who wrote the Annual Report, not to overturn the decision but to decide if the Assessor failed to follow policy published in the 2016 Report, to decide whether she should in fact have returned the case to PE with a recommendation that they revisit the mitigating circumstances and cancel the charge.
I await to hear from you

Mrs Tracey Rhodes