POPLA Complaint - extension granted

Coupon-mad

I have always parked here of an evening in the past without issue,

OUCH! The 'MSE article' awful appeal strikes again. The very fact they still tell people to say this about a parking charge:

The charge is disproportionate and not commercially justifiable. Furthermore, the amount you have charged is not based upon any commercially justifiable loss to your company or the landowner.

...shows how much notice MSE have taken of the things we've been telling them about what is wrong with that excuse for an appeal, that WILL cause posters loss because it is rubbish and tells people to say what happened.

Maybe email the DVLA back and ask them to clarify, did they really mean 12th March for the operator making the data request because if they did, blah blah (you know what to say by way of complaint because I've already posted it).

LittleMissParker

Thank you - I have sent an email this morning to clarify so will let you know when I hear back.

when I spoke with the landowner directly as first attempt, he advised that after 6pm charge had always been in place although in the evidence pack, the contract between him and LPL is dated July 2017 so clearly not the case.

LittleMissParker

This just in...

Thank you for your email regarding the confusing information which I have sent you.

The information contained within the letter is incorrect. As you pointed out the information contained in my letter was incorrect, it should have been as follows

According to our records a request was made manually signed 19/03/2018 for the keeper details on the above vehicle on 16/02/2018 in relation to an alleged breach of terms and conditions of parking. Should you require any further details concerning the Contravention you will need to contact the parking company directly as the DVLA does not hold this information. The request was processed at DVLA 04/04/2018.

I can only apologise for this and have double checked the information held in the application. I will send out a corrected letter to you today containing the correct information.

Allen Stark
Administrative Officer

For goodness sake Allen!!
Well at least that!!!8217;s boxed off and I know that the info is of no use now with regards to when they requested my details.

That being said the NTK by my workings was raised 74 days post parking. Think I may be l clutching at straws with that though because as you say I cannot now use that in my reply to POPLA anyway.

nosferatu1001

Yes, but you can use it should court happen. Proves they cannot comply with POFA. No ifs or buts.

Loadsofchildren123

yes but if the OP has outed themselves as driver, what use is non-compliance with POFA?

Coupon-mad

I think I would say the OP has dobbed themselves in as driver, but hey, POPLA might not see it that way so point out in your comments, that you appealed as keeper and the evidence does not include a NTK.

Plus any other omission, such as no evidence of landowner authority.

You can only comment on things you raised in the POPLA appeal.

LittleMissParker

Thanks guys - if I can figure out how to do it, I will try and post the car parking operator evidence pack and the decline decision this evening.

I really cannot thank you all enough for all your help so far. Just so cross with myself that I shot myself in the foot in the first place when appealing.

LittleMissParker

POPLA decline:

POPLA assessment and decision
31/05/2018
Verification Code
Xxxxxx
Decision
Successful Unsuccessful

Assessor Name
Richard Beaden

Assessor summary of operator case
The operator has issued a Parking Charge Notice (PCN) as the driver failed to purchase a ticket.
Assessor summary of your case
The appellant advises that they have spoken to the land owner who confirmed this is not an isolated incident. They advise that the land owner confirmed that there had always been a charge for parking after six. The appellant advises that they invite the land owner to show the terms had changed. The appellant advises that the signage is unlit so cannot form a contract. They advise that the charge is disproportionate and does not comply with Unfair Terms in Consumer Contracts Regulations 1999. The appellant has provided two excerpts from the internet and a document containing photographs of the signage at the site.

Assessor supporting rational for decision
When parking on private land, it is the responsibility of the motorist to ensure they adhere to the terms and conditions of the car park. The operator has provided photographs of the signage which it has installed around the car park. These signs show the following terms and conditions, !!!8220;By parking or remaining on this site in any of the circumstances listed below you are entering into a contract to park, and you the driver, agree to pay a Parking Charge of £100, Parking in operation 24 hours a day 7 days a week, Vehicle not displaying valid permit and/or valid pay and display ticket within the windscreen of the vehicle!!!8221;. The operator has issued a Parking Charge Notice (PCN) as the driver failed to purchase a ticket. The appellant advises that they have spoken to the land owner who confirmed this is not an isolated incident. They advise that the land owner confirmed that there had always been a charge for parking after six. The appellant advises that they invite the land owner to show the terms had changed. The appellant advises that the signage is unlit so cannot form a contract. They advise that the charge is disproportionate and does not comply with Unfair Terms in Consumer Contracts Regulations 1999. The appellant has provided two excerpts from the internet and a document containing photographs of the signage at the site. Within its evidence pack the operator has provided photographic evidence of the signage it has installed at the site. These photographs are date and time stamped. These show that the signage has been in place since July 2017. I do not consider that the terms and conditions for the use of the site have recently changed. The operator images show the signage at the site in both daylight and darkness and are date and time stamped. The appellant has also provided images but these are not date and time stamped so I have no way of telling when they were taken in relation to the parking incident. Within Appendix B of the British Parking Association (BPA) Code of Practice it states !!!8220;Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.!!!8221; Based on the evidence provided I am satisfied that the signage is adequately lit. The evidence shows that some of the signage is attached directly to lampposts while are signs are indirectly lit. The appellant advises that there has been no loss to the operator. 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: !!!8220;!!!8230;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.!!!8221; 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 the British Parking Association (BPA) Code of Practice. Section 18.1 states: !!!8220;You must use signs to make it easy for them to find out what your terms and conditions are!!!8221;. Section 18.3 of the BPA Code of Practice continues: !!!8220;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!!!8230;Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand!!!8221;. In addition to this, I note that within the Protection of Freedoms Act (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 !!!8220;adequate notice!!!8221; of the charge. POFA 2012 defines !!!8220;adequate notice!!!8221; as follows: !!!8220;(3) For the purposes of sub-paragraph (2) !!!8220;adequate notice!!!8221; 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!!!8221;. 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. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. Finally, the appellant has raised concerns that the PCN does not comply with Unfair Terms in Consumer Contracts Regulations 1999. This legislation has now been replaced by the Consumer Regulations Act 2015 but this has not yet been considered by a court. The Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999 has been considered by a court. For all intents and purposes, in relation to unfair terms, they are the same in substance. In ParkingEye-v-Beavis, the court considered whether an unpaid parking charge was (a) a penalty; and (b) unfair, according to UTCCR 1999. They concluded: !!!8220;In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations!!!8221;. Borrowing on this reasoning, we do not consider the charge is a penalty and we do not consider it unfair. POPLA!!!8217;s role is to assess if the operator has issued the Parking Charge Notice in accordance with the conditions of the contract. As the terms and conditions of the car park have not been met, I conclude that the operator has issued the Parking Charge Notice correctly so the appeal is refused.

Coupon-mad

OK now show us the evidence pack you now have to comment on.

LittleMissParker

Operator evidence pack:
Case Summary

Operator: Lodge Parking Limited
Verification Code:
Vehicle Registration: Xxxx ***it is worth saying that they have used the completely wrong reg in this section***
Parking Charge Notice Reference Number: xxxx
Location: High Green Car Park, Cannock

On 16/02/2018, the above vehicle was parked at the High Green Car Park in in Cannock.
Xxxxx, appealed the above parking charge notice to which the outcome was deemed unsuccessful on 27/03/2018 as xxxxx failed to display a valid purchased ticket so that it was visible for inspection. Please note that ZZPS are employed by Lodge Parking Limited as their agents to handle the back-office procedures such as appeals and payment process on!!!8211; therefore the appeal rejection letter was answered on behalf of Lodge Parking Limited. For all POPLA appeals, Lodge Parking Limited answer these themselves.
It is xxxx responsibility to ensure a valid Pay and Display ticket us clearly visible within his vehicle windscreen/dashboard once he has secured his vehicle. Please note that the Parking Charge Notice is created electronically and is not saved on our system. It is however printed out and attached to the vehicles window for the motorist (please see attached photographic evidence). The information on the parking charge notice stated:

- PCN: xxxx
- Issue Time: 16/02/2018 xxxx
- Site: High Green Car Park, Cannock
- Contravention: No Ticket
- VRM (Registration): xxxx **here they used the correct reg**
- Make: Xxx
- Colour: Xxx
- Charges: £60 if paid within 14 days. £100 if paid within 28 days.
- This Parking Charge Notice has been issued to the driver of the vehicle to which it is affixed for the reason as stated above with notice of the Charge having been clearly displayed on the signage in and around the location. Payment is now due to us, named above, being the Creditor and entitled to recover the same.
Payment
The driver is liable to pay the sum of as noted above. However, if payment is received within 14 days of this notice then a reduced amount, also referred to above, will be accepted in full and final settlement. Payment can be made to us at the address specified in this notice by using one of the following payment methods:
- By debit/credit card by calling: 01932 918098
- By Cheque/Postal Order made payable to: PCN Admin Centre
- Online at:

You are advised to send postal payments by recorded delivery. All payments must be referenced by the PCN number and the Vehicle Registration Number. Failure to pay this Charge may result in debt recovery and enforcement action which could include County Court proceedings and which may incur additional costs. The costs of recovery action will be added to the Charge.

Appeals
All appeals must be received within twenty-eight days of the date of this notice. The value of the Parking Charge will be held whilst the appeal is being considered. Any appeal against this notice may be received as follows:
- via our website
- via email
- in writing at the address shown above.
Appeals cannot be accepted by telephone. If your appeal is rejected you will be provided with details of how to refer the matter to an independent appeals service (!!!8216;POPLA!!!8217;), along with a unique reference number.
Any appeal you make to POPLA will be rejected unless you have first followed our own appeals service. Please note, if you DO appeal to POPLA and your appeal is rejected, you will lose the option to pay the reduced amount.
Details of the appeal procedure can be found at

Complaints
If you wish to challenge the validity of this PCN then you must use the Appeals procedure detailed above. Other issues can be dealt with under our complaints procedure. If you wish to complain, you MUST complain to us directly in the first instance by writing to us at the address at the top of this notice.
Registered Keeper details and Data Processing
In the event that payment is not made in full within 28 days of issue of this PCN, the vehicle's keeper details may be requested (under Regulation 27(1)(e) of the Road Vehicles (Registration and licensing) Regulations 2002) from the DVLA and a notice may be sent to the registered keeper (data can be released by the DVLA under !!!8216;Reasonable Cause!!!8217; provisions). Enforcement action may include County Court proceedings. Non-payment of County Court Judgments may adversely affect your credit rating.
We comply with the DVLA requirements on data release and only retain/process information for the purposes for which it was obtained and in accordance with the Data Protection Act 1988. Where recovery action is necessary, data may be shared for that purpose with third parties.
- As a reputable operator, we are members of an Approved Trade Association (ATA) and follow a code of practice which states that any Charge issued cannot be unreasonable or used as a penalty; this is a Parking Charge and not a penalty or fine.
- For any additional queries relating to the release of your data by DVLA, making an appeal, making a complaint to the DVLA, the Information Commissioner!!!8217;s Office or more information about our ATA, please visit or write to us requesting this information.
- Payment of this Charge may be pursued by the operator through legal means, including the courts, which may result in you incurring additional costs. Free and independent advice is available from your local Citizens Advice Bureau or by calling the Citizens Advice Consumer Advice helpline on 0845 404 0506.


You can also see in the photographic evidence of signage showing the terms and conditions of the car park in the Top right hand corner attached to a lamppost under lights (Lighting the sign up). Xxxxxx has also provided a photograph of the same angle that again clearly shows the terms and condition. Also attached is a closer version of the signage, clearly showing the terms and conditions of the car park.
We note that in the photographic evidence there is no Pay and Display ticket on show ever it had expired. Please see photographic evidence of the vehicle, which has been submitted to POPLA. Signage (please see photographic evidence submitted) states that a Parking Charge Notice will be issued if a valid Pay and Display ticket is not displayed in the window screen of the vehicle. As this vehicle did not have a valid Pay and Display ticket, a Parking Charge Notice was issued.
xxxxx makes mention that there is a !!!8216;total lack of or no Proprietary Interest and non compliant legal contract with the landowner.!!!8217;. A photo of the contract between ourselves Lodge Parking Limited and the landowner to prove there is written consent. Also. for your further information, in the case of ParkingEye Limited !!!8211;v- Beavis the court of appeal unambiguously clarified the common law's position on both the nature and enforceability of parking charges. It is now clear that a parking charge having the predominant purpose or intention to deter is not sufficient in itself to invalidate the charge so long as it is not extravagant and unconscionable; thus this parking charge is fully enforceable under the rules about contractual penalties. The Court made reference to indirect losses that parking contraventions can cause to operators, the need for large charges to deter breaches, the benefit to the community that such deterrence can create and the intention of Parliament for such charges to be enforceable.. Following the ruling in Beavis, it is without doubt that your parking charge is wholly valid and fully enforceable.

xxxxx makes mention that signage does not comply with BPA guidelines !!!8211; however Lodge Parking Limited have recently passed its audited and have been confirmed that they meet the BPA guidelines. Signage can been seen in the photographic evidence supplied. Please see photographic evidence of signage. Signage clearly states that enforcement occurs 24 hours 7 days a week. The tariff board also stats that it is £1.00 for the evening charge. We are unsure why xxxxx has made reference to comments on an unverified website when photographic evidence, that has been supplied to POPLA, shows that xxxxx did not clearly read the terms and conditions of the car park, therefore it was due to xxxx negligence for not familiarising herself with the terms and conditions of the car park before leaving her vehicle.

xxxxx has appealed on the grounds that !!!8220;The amount requested on the parking charge notice is not correct!!!8221;. However, we are not asking xxxxx to pay the wrong amount. The amount is clearly stated on signage, the PCN and the rejection response all of which state £100 - £60.00. xxxxx has not paid anything towards this PCN to date.

Lodge Parking Limited have demonstrated to xxxxx and to POPLA that we have acted accordingly in terms of bringing the parking terms and conditions to the attention of xxxxx.

xxxxx had parked on private land, whereby she freely entered into an agreement to abide by the conditions of parking in return for permission to park.

Signage warns drivers of contraventions that will leave you liable to receive a parking charge notice. Please see attached photograph showing our signage and an example of its details. Please note signage is also visible within the background of the evidence taken on the above date.

Overall to conclude, xxxxx failed to display a valid purchased ticket and as a result ticket details could not be verified.

Photographic evidence has been supplied to POPLA via the portal and has been submitted bellow on this document.

Lodge Parking Limited.

**pics to follow**

Sent from my iPhone