Help with POPLA operator evidence comments

andy-e · 8 March 2018 at 4:07PM

Hello,

I've received a response from the operator via my POPLA appeal and would like to get some advice regarding my comments on the operator's response. In summary, last month I parked in a space allocated to my company, with express permission from my company, but did not yet have a permit. I was supposed to register my details with reception, which I normally did but on this occasion I forgot. I appealed to the operator and they rejected it, so then I took my appeal to POPLA on the advice of forum members here.

Here is the operator's comments:

Case Summary
This Parking Charge Notice was issued at <redacted> car park on
25 January 2018. As clearly stipulated on the signage within the car park, a valid
permit must be displayed clearly within the vehicle when parking at this car park.
The Patrol Officer first observed the vehicle without a valid permit at 13:39. A 6
minute grace was allowed and a Parking Charge Notice was issued at 13:45.
The appellant appealed on the basis that he was waiting for his permit to come
through and that he had permission to park in the space which was allocated to his
employer.
Rejecting his appeal, the appellant was advised as his vehicle was parked in a permit
only car park and did not display a valid permit the Parking Charge Notice was issued
correctly. The appellant was further advised there is ample signage within the car
park which states the terms and conditions of the car park.

<SIGNAGE PICTURE>

The Parking Contract
By parking within this car park, the appellant has entered into a contract with
Horizon Parking and has consented to comply with the terms and conditions set out
on the signs in that car park which are clearly visible.
The car park contains ample signage within the car park setting out our terms and
conditions. All drivers therefore have the opportunity to review the terms and
conditions prior to entering into the contract with Horizon Parking.
The terms and conditions are clearly incorporated into the contract. If a driver elects
not to review the terms and conditions on the signage, this does not mean that the
terms and conditions are not incorporated. The parking charge notice which has
been issued is therefore lawfully binding under the contract the motorist has with
Horizon Parking.
Please see section F below for evidence of ample signage on site.

Amount of the Parking Charge
We would contend that it is too late now to indicate that they are unhappy with the
parking charge !!!8211; this should have been done at the time of accepting the !!!8216;parking
contract!!!8217; - if the appellant was unhappy with the contract terms, they should not
have remained at the location. The amount of our charge has been calculated in
advance and is clearly set out on the notices and signage. As such it is accepted on
parking and the driver cannot claim that there are any Trading Standards or
Consumer Regulation breaches as they have accepted the conditions at the point of
opting to park at the location. On accepting the parking conditions, we argue that
the appellant cannot now seek to effectively renegotiate them or to dismiss them in
their entirety. The charge of £80.00 reduced to £45 is as advertised and within BPA
guidelines.
Enforcement and the issue of PCNs is recognised as asset protection and as the
principal or lease holder of the site it is incumbent on us and part of our contractual
responsibility to manage the facility to the best of our ability in order to either
generate the maximum amount of revenue possible for the land owner or lease
holder or to keep our clients allocated parking clear of fly parkers and for the actual
use of those who are entitled to park, be it an office allocated parking area, a retail
park or a person!!!8217;s individual parking space or drive way.
On 23 April 2015 a judgement was announced by Lord Justice Moore-Bick, Lord
Justice Patten and Sir Timothy Lloyd in relation to the court of appeal against the
order of HHJ Moloney QC giving judgement in favour of the respondent, ParkingEye
Ltd, against the appellant, Mr Barry Beavis, on its claim to recover a charge of £85.00
for overstaying the permitted period of free parking in within a car park managed by
the respondent.
The Court of Appeal unanimously dismissed the challenge stating the Parking Charge
Notice amount of £85 "is not extravagant or unconscionable"'. Therefore, a Parking
Charge Notice amount of £80.00 reduced to £45.00, if paid within 14 days, cannot be
deemed as excessive.
Parking Charges are fair and reasonable and have been tested at the Court of Appeal.
A charge of £75 was found by HHJ Hegarty QC in the case of Parking Eye v Somerfield
Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the
specified time limit) would be contractually bound. See also Combined Parking
Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007).
Further evidence, that parking charges cannot be viewed as penalties, can be found
in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr
Stephen James Thomas [2008] and Combined Parking Solutions v De Brunner [2007]
In the POPLA evidence pack we have provided clear evidence that by staying at the
location, the appellant has accepted all of the prevailing terms & conditions of the
parking contract including the charges for not complying with the advertised terms
and conditions. There are a large number of signs at the parking location, which
offers the parking contract to the motorist, and sets out the terms and conditions of
the parking area on which the operator will rely, and on which the motorist has
agreed to be bound by which will become payable if the terms and conditions of
parking are not met.
By parking his vehicle at this car park, the appellant entered into a valid contract and
agreed to abide by its terms and conditions in return for permission to park. The
ample signage displayed throughout the site advises the terms and conditions of use.
One of the conditions is that a valid permit must be displayed. The signage advises
that a Parking Charge Notice of £80.00 will be issued when the terms and conditions
are breached.
It is the driver's responsibility to ensure they comply with the terms and conditions
of the car park. In this case, by not ensuring that a valid permit was displayed the
appellant breached those terms and conditions. Our position remains that the
Parking Charge Notice was issued correctly. We maintain the appellant entered into
a valid contract and should pay the valid parking charges as per the signage on the
site.

I haven't written my comments yet, but here's some of my thoughts:

While it is true the signage says permits must be displayed, they do allow cars registered with reception not to display a permit, though this is not clearly indicated on the signage.
This section caught my attention as a part I could potentially comment on:

Enforcement and the issue of PCNs is recognised as asset protection and as the
principal or lease holder of the site it is incumbent on us and part of our contractual
responsibility to manage the facility to the best of our ability in order to either
generate the maximum amount of revenue possible for the land owner or lease
holder or to keep our clients allocated parking clear of fly parkers and for the actual
use of those who are entitled to park, be it an office allocated parking area, a retail
park or a person!!!8217;s individual parking space or drive way.

Here the operator details that it's their responsibility to "keep our clients allocated parking clear of fly parkers and for the actual use of those who are entitled to park," which is not what has been observed in this case as I was not a fly parker and am entitled to park.

I only have 2000 characters for comments, so I would like to provide the best rebuttal I can and would love some expert advice. I'm fighting this because I find it terribly unfair that I'm being punished for being distracted and forgetting to log my details with reception, a complete one-off that had never happened before. Ironically, my permit arrived a few days later.

Thanks,
Andy