PE/Aldi Hidden clause mk2.

bergkamp

POPLA.

Decision Unsuccessful
Assessor Name Alexandra Roby
Assessor summary of operator case
The operator’s case is that the motorist remained at the car park for longer than the stay authorised.

Assessor summary of your case

The appellant’s case is that there is genuine customer exemption criteria unevidenced and not explained to motorists. The appellant states that his appeal was rejected as he did not meet the landowner’s discretionary criteria, despite having provided a copy of his receipt to prove that he was a genuine customer. The appellant states that the hidden clause is an unfair term under the Consumer Rights Act 2015. The appellant has provided a copy of his receipt to support his appeal.

Assessor supporting rational for decision

In this case, it is not clear who the driver of the vehicle in question is, so I must consider the provisions of the Protection of Freedoms Act 2012 as the operator has issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of the Protection of Freedoms Act 2012 and I am satisfied that it is compliant, and that the operator has successfully transferred liability to the keeper of the vehicle.

The terms and conditions of the site state: “1 ½ hour max stay. Aldi customers only. Failure to comply with the terms & conditions will result in a Parking Charge of: £70”. The operator has issued the PCN as the motorist remained at the car park for longer than the stay authorised. Images from the operator’s Automatic Number Plate Recognition system have been provided, which show that the appellant’s vehicle entered the car park at 13:XX and exited at 18:XX on the day in question, staying for a total of four hours and XX minutes.

The appellant’s case is that there is genuine customer exemption criteria unevidenced and not explained to motorists. The appellant states that his appeal was rejected as he did not meet the landowner’s discretionary criteria, despite having provided a copy of his receipt to prove that he was a genuine customer.
The appellant states that the hidden clause is an unfair term under the Consumer Rights Act 2015.

The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.”
As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the British Parking Association (BPA) Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site.

In addition to this, I note that within the Protection of Freedoms Act 2012 (PoFA 2012) it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist.

Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. When parking on private land, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore upon entry to the car park, it is the duty of the motorist to review and comply with the terms and conditions when deciding to park.

Furthermore, whether such a clause in the contract exists between the landowner and the parking operator has no bearing on my decision in this case. I do not consider that it would have affected the motorist’s ability to comply with the terms and conditions in the first instance.

While I note that the motorist may have been a genuine customer of the Aldi store that day, this did not make them exempt from the site’s terms and conditions. As the motorist remained at the car park for longer than the stay authorised, they have failed to comply. As such, I conclude that the PCN was issued correctly.
Accordingly, I must refuse this appeal.


Appeal to NTK:
https://www.dropbox.com/s/lz7r801748ti6ms/Screenshot_20180403-133548.png?dl=0

Response from PE:
https://www.dropbox.com/s/7fg7ky35sqjm99w/Screenshot_20180403-133622.png?dl=0

From PE's POPLA submission:
https://www.dropbox.com/s/2q2cei2tl3rqc5n/Screenshot_20180403-134038.png?dl=0

My comments to POPLA:
https://www.dropbox.com/s/y0kd0by6om7vuwk/Screenshot_20180403-134218.png?dl=0

(Apologies for formatting and if links don't work. I'm away from my laptop this week and will update with my actual appeal to POPLA when I can. )
This appeal follows on from this thread;

https://forums.moneysavingexpert.com/discussion/5599997

and used a tweaked version of the appeal.

Coupon-mad

I am glad it was you testing this one-point POPLA appeal, bergkamp!

And at an Aldi store as well, where we all suspect/know PE ''can't sue, won't sue''.

Ironic that real POPLA (the legally trained clever ones at London Councils) upheld an appeal I made to them testing the exact same single point, back in 2013 or whenever. They absolutely got it and agreed the 'genuine customer exemption' term was unenforceable as it was withheld from the consumer, and they didn't like the fact PE didn't address the point.

Of course (@new POPLA, bright young things) it's not just between the trader and PE, this is contract law and adversely affects consumers and is inherent in the charging regime! The term is deliberately hidden and if people knew about the secret 'floor limit' for exemption, they would make a different purchasing decision and bung another pack of bogrolls in the trolley to take it over the ceiling.

beamerguy

Because this is a mega scam industry, one cannot
help but think ......

PE = BPA = POPLA with a little bit of Aldi thrown in

Umkomaas

Invite PE to issue proceedings and let a Judge, with knowledge of the law (unlike the lightweight POPLA assessors), determine if the POPLA decision is correct and whether PE is being disingenuous in pursuing this charge, particularly in the context of the CRA 2015.

Test out just how far Aldi will let them go. Copy the response to PE to Aldi HO and ask them if they have provided authorisation to PE to sue a customer in the small claims court - can they confirm, one way or the other - a simple yes/no will suffice.

bergkamp

Umkomaas wrote: »

Invite PE to issue proceedings and let a Judge, with knowledge of the law (unlike the lightweight POPLA assessors), determine if the POPLA decision is correct and whether PE is being disingenuous in pursuing this charge, particularly in the context of the CRA 2015.

Test out just how far Aldi will let them go. Copy the response to PE to Aldi HO and ask them if they have provided authorisation to PE to sue a customer in the small claims court - can they confirm, one way or the other - a simple yes/no will suffice.

I shall wait for PE's demand to come through and do just that...

As it happens, a single point POPLA appeal is in progress regarding PE's authority to issue and pursue parking charge notices at the same site....
And I'm sure a single point appeal regarding signage at the site will follow soon...

bergkamp

Update to include the actual POPLA appeal;




'Genuine customer' exemption criteria unevidenced and not explained to drivers.


This parking operator offered parking to shoppers of the retailer. It is not disputed that the occupants of the car were genuine shoppers. Notwithstanding that the driver has not been identified, a receipt was supplied with the first appeal because I understand from my research of other cases, that this operator supplies a 'User Manual' or 'Site Manual' to the retailer which allows for 'genuine customers' to have their charges cancelled (regardless of whether a shopper overstayed) if the customer complains and show receipts.

It is noted that the contractual terms on the signage fail to advise customers of this secret clause or the ceiling of 'total spending' above which a parking charge will be cancelled, so visitors have no way of knowing these terms.


This evidence is vital because the operator rejected my appeal on the following basis, yet I have reason to believe the charge should have been cancelled:

‘ You have provided evidence of purchase. However, please be advised that this did not meet the discretionary criteria set by the landowner in this case. We are therefore writing to advise that your recent appeal has been unsuccessful and you have now reached the end of the internal appeals procedure. This is because you have not provided sufficient evidence to show that you did not break the terms and conditions on the signage ‘

So what is 'sufficient evidence'? A receipt for £10, or £50, or one with a higher spend than we showed them? ParkingEye are silent on the 'secret exemption clause' figure and have made my position impossible at appeal stage by not disclosing to customers what that 'discretionary criteria' is. Because of this, neither POPLA nor I can judge whether they have correctly applied it.


I contend that the occupants of the car did spend enough in the retailer for the PCN to be cancelled (copy receipt attached as proof of this submission) .

POPLA please note: this is NOT a point of mitigation, this is a case of this operator failing to evidence that they have correctly applied the 'criteria' (whatever it might be) in the site/User Manual and if they cannot evidence that they did, then the parking charge cannot be considered 'properly given' at the point of refusing my appeal. A Site/User Manual sets out the criteria under which the parking enforcement operates from the retailers' informational point of view.

If this operator remains silent on any appeal point then it is deemed accepted.
!!!12288;
This hidden clause is an unfair term under the Consumer Rights Act 2015 Schedule 2;
!!!12288;
http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted