POPLA Complaint - extension granted

Coupon-mad

Some of the links didn't work for me but my observations were:

- I only saw a photo of the front page of a purported 'contract' with a managing agent who do not own the car park. And that page doesn't even say what the restrictions are (permits only? Pay & display?) let alone the definitions of the agreement as per the BPA CoP para 7a -e.

- the £100 on the sign is in extremely tiny writing, had to hunt for it even based on that clear photo, and where was that sign in relation to the car, where's their evidence?

- I didn't see an aerial view map from them that shows where the signs are

- I didn't see anything saying how many signs are there, and where they are

- I didn't see any pics of the car & sign in the same view

- where is the proof the car had no PDT displayed, or expired?

- lots of it made no sense, such as: ''We note that in the photographic evidence there is no Pay and Display ticket on show ever it had expired.'' ?? What do they mean and where is their evidence?

- didn't see a copy of your FIRST appeal in the evidence; if it's not there then POPLA will not know whether you blabbed in the first appeal or not!

- didn't see a copy of any Notice to Keeper. They've assumed you were driving - no evidence.

Try pointing all the above out to POPLA.

pogofish

LittleMissParker wrote: »

Please go easy on me - it!!!8217;s taken two hours to find how to post a new thread after scouring the existing ones to (hopefully!) make sure I!!!8217;m not duplicating.

Sorry - but if you had taken/followed the advice you were clearly directed to and confirmed that you had read and understood as part of your signup, you would have learned how to post and the importance of reading the board stickies before posting/acting within a matter of minutes - Thus completely avoiding the mistake of basing anything on that awful article.

LittleMissParker

Sorry - really shoddy signal today! Thanks for your pointers coupon-mad
I had not noticed the lack of restrictions on the !!!8216;contract!!!8217;

They are using a sign I supplied on my evidence pack to illustrate where the sign is in relation to the car - my usage of it was in daylight hours to highlight the fact that the text is not visible from where the car was parked.

Agreed - some of the strange language that is used, it doesn!!!8217;t make sense. I guess in terms of evidence of no ticket, there are multiple pictures of the car, some of which show the dashboard.

Definitely no copy of my first appeal in their evidence pack, just their refusal.

Also no NTK enclosed.

I am going to do my draft tomorrow and revise, revise, revise before sending.

Pogofish - thanks for commenting.
I probably wasn!!!8217;t clear in my post. I took 2 hours to scour the forums to make sure I wasn!!!8217;t duplicating and inevitably skim read the part about actually posting. I only came across this forum after the appeal had been submitted unfortunately - otherwise I would never have used the awful article that I did. Hindsight is a wonderful thing. Thanks again for commenting.

Ian011

LittleMissParker wrote: »

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.

Note the Citizen's Advice Consumer Helpline phone number changed to 0345 404 0506 on 12 June 2014. The premium rate 0845 number is no longer in use.

LittleMissParker

Hi all,

Well today was day 10, when I was advised I!!!8217;d have received the outcome of a full review. I chased it up as nothing had been received by 3pm.

It all now seems to have been a rather fruitless exercise -

I will post my email below, and the response I received. The complaints assessor advises that she cannot consider the points of the operator not providing evidence of their BPA audit, nor the fact that the scanned copy of the contract is not clear as I did not bring this up in my original review and can only consider new points...well obviously this is the first time I am bringing it up as I was commenting on the evidence provided by the operator???

Furthermore, there is no acknowledgement whatsoever about the incorrect reg being used by the operator. So it ws ignored by the original assessor, and again by the complaints assessor.

Any advice as to where to go from here? Is it worth replying to the email and asking for clarification on the above or do you guys read it as final?


My comments on operator pack:

In addition to my complaint made via email on 8/6/2018, please see my additional comments below, following review of the operator evidence pack, supplied by Lodge Parking Limited.

Primarily, in the opening to their case summary, the registration is documented by the operator as 'Xxx xxx!!!8217; and it is stated in their opening paragraph, 'On xx/xx/2018, the above vehicle was parked at High Green Car Park in Cannock'. I am not the registered keeper of this vehicle, nor do I have any link to this vehicle. I therefore deem their appeal to be invalid, and find it extremely concerning that the assessor not only failed to follow the correct POPLA procedure, but also failed to notice this and allow the appeal on this basis.

This is merely one of a catalogue of issues in the evidence pack.

In addition !!!8211;
!!!8226; You will note that the operator has not attach my initial appeal to them. I have attached it for your reference !!!8211; nowhere did I state in the appeal that I was the driver of the vehicle on the evening of xx/xx/2018. Whilst I acknowledged that I was in the car, Lodge Parking Limited have made the assumption that I was the driver. Furthermore, they did not issue the NTK (again, attached for your reference as they failed to supply a copy in their evidence pack) until 1st May 2018 !!!8211; 74 days after the date of the alleged contravention. My understanding is a NTK must be issued by day 56 for liability to be transferred to the registered keeper, under schedule 4 of the Protection of Freedoms Act 2012. Lodge Parking Limited can therefore not transfer keeper liability to me as the registered keeper as they have no evidence that I was the driver on the evening of Xx/xx/2018.

!!!8226; Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
!!!8220;There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle! There is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

!!!8226; The operator states that they have recently passed their audit, which has confirmed that they meet the BPA guidelines but again have failed to supply evidence of this !!!8211; given that POPLA state that they can only take into the account the evidence and facts provided, this statement should be discarded as no there is no proof of this. Whilst they have supplied pictures of signage, as stated in my appeal !!!8211; the signage on entry which refers you to additional signage is NOT visible from a passing car due to its location and the fact that it is not illuminated, and is at contrast with the BPA guidelines on signage. Furthermore, the other images supplied are close up images and images taken on 01/07/2017 have been during daylight !!!8211; this does not show them how a driver would see them, and not as they would have been seen during the dark at 8.59pm in February. They have also not show images of the signs, which were unlit in the dark as it was for the driver.

Nor has the operator supplied evidence such as an aerial map of where the signs were in relation the vehicle. Again, I have included this for your reference.



Additional image attached for your reference to verify the location of the ticket machine that can be seen in daylight hours !!!8211; to the right and rear of the pedestrian, beneath the canopy, further verified by the road marking as per the aerial view map above.



Equally in their evidence pack, the operator has not stated how many signs there are or where they were. I therefore fail to understand how the assessor could have come to the conclusion that based on the evidence provided, he is satisfied that the signage was adequately lit. I have illustrated on the aerial view map, as stated in my appeal to POPLA the location of the ticket machine !!!8211; as stated, it is up a corner in the opposite direction of the entry/exit to the car park, offering no opportunity for visitors to the site to see that there is now a £1 parking charge in place after 6pm. The assessor also makes reference to a time/date stamp on images supplied by the operator illustrating that signage has been in place since July 2017 although does not deem that this is a recent change. As a driver, I have parked there on several occasions during the autumn and winter of 2017, none the wiser to the fact that the terms of this car park had changed from being free after 6pm. As such, the issued PCN was the first occasion on which I was alerted to the fact that the terms had changed. So with due respect, whilst the assessor does not deem that the terms have changed recently, they evidently have and are now only starting to be enforced, as advised verbally by Chris Salmon.

The signage needs to be clearer than it is currently, if the genuine purpose of the pcn is to deter !!!8211; otherwise it is merely an attempt to make money from honest people. Even from the clear stock photo provided by the operator, the charge of £100 is not clear and is lost in the remainder of the text. Finally, the image the operator has provided which purports to show the signage in relation to the car is extremely difficult to see and you will note that the only lighting to this sign is from surrounding shop lights !!!8211; NOT directly from the lamps above the sign itself, again, as per BPA guidelines which were not lit. The signs in this car park are not prominent, clear or legible from all parking spaces. Indeed the text is so small as to render the sign unreadable and unremarkable. The entry sign is impossible to read whilst entering the carpark and is insufficient to give one cause to revisit after parking. I propose that this has been done deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognised or noted by drivers. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms are not sufficient to disprove this.

!!!8226; I invited the operator to provide to POPLA their genuine pre-estimate of loss for this charge which I note they have failed to do. Despite this, the assessor acknowledges that the charge may not be a genuine pre-estimate of loss, again referring back to the signage. I maintain that the charge is both extravagant and unconscionable in light of the face that other local municipal car parks are free of charge after 6pm and that this pcn in any case, is almost double - https://www.cannockchasedc.gov.uk/visitors/parking/parking-enforcement In comparison to these charges, the sum demanded is clearly far more than that needed to deter, far more than genuine losses and is therefore disproportionate. Additionally, the sum is roughly equivalent to a week!!!8217;s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum and completely disproportionate to the costs involved of the alleged contravention.

!!!8226; The operator also relies on the Court of Appeal judgement in the case of ParkingEye v Beavis. However, as outlined in my complaint !!!8211; aside from the circumstances being completely different in that case, the court applied that the decision was !!!8216;taking into account the use of this particular car park!!!8217;.

!!!8226; The !!!8216;contract!!!8217; supplied in the operator evidence pack is a photograph as opposed to a scanned document, and has been taken in such a way that it is difficult past the first page, so T&C!!!8217;s with the landowner cannot be read clearly. In addition, the contract is between a managing agent who does not own the carpark. I also cannot see that it states the definitions of the agreement as per the BPA CoP para 7a-e.

In closing, I hope that by completing a full review of this case, the assessor deems that the evidence provided by the operator does in fact warrant that the appeal should be upheld, and the pcn cancelled due to the issues as outlined.


Reply received today:

Dear Xxxxxx xxxxxxxxxx,

Your complaint about POPLA

Thank you for your email dated 18 June 2018, which was passed to me by the POPLA team as I am responsible for responding .

It was highlighted by yourself that you were not given the opportunity to respond to the operator!!!8217;s evidence pack.

I do apologise that I was not available when you called and spoke with Carly earlier today. I have discussed the appeal with Richard regarding your comments and below is my response.

I note from your comments that you have raised the Protection of Freedoms Act (PoFA) 2012 and you state that you have not identified yourself as the driver.

I have read your grounds of appeal to POPLA and you have stated:

!!!8220;my car was parked at High Green Court Car Park, Cannock on the evening of 16/2/18 as I have done on many an occasion of an evening previously. I have always parked here of an evening in the past without issue, as the car park is free of charge to park after 6pm, as are the other car parks in town, which are council owned. I returned to my car to find a ticket had that been issued within minutes of me leaving my car (I know this to be the case as I sent an SMS on my arrival). The car park in question has no clear signage to explain that the relevant parking restrictions have changed. Furthermore, the charge of £100 is disproportionate and not commercially justifiable, in light of the fact that I have since established that the cost to park between 18.00 and 07.59 is £1.00.!!!8221;

Having read these grounds of appeal the assessor was satisfied that you were the driver and I agree with their judgement.

PoFA 2012 is required only when the operator is transferring the liability of the parking charge from the driver to the registered keeper. In this instance I am satisfied that you stated to POPLA that you were driving and as such I do not have to consider the provisions laid out in the Protection of Freedoms Act (PoFA) 2012.

You mention signage in your comments. The assessor has addressed signage within his response and as such I am satisfied with his response.

The assessor was satisfied that the operator provided images of the signage and stated the following:

!!!8220;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.!!!8220;

I have viewed these images and agree with the assessor!!!8217;s rationale. There were images provided of the signage in daylight and at darkness and this shows that the site was sufficiently lit.

You state that you invited the operator to provide POPLA with a copy of their genuine pre-estimate of loss which it has failed to provide.

I can see that the assessor has addressed this point and was satisfied that the charge was allowable, even though the charge may not be a genuine pre-estimate of loss. Even though you state that your event was different to that discussed in the Beavis v Parking Eye case, we consider the decision of the Supreme Court and look at the signage to see whether the signage was clear, whether the motorist kept to the terms and conditions and whether the charge is extravagant or unconscionable. The assessor was satisfied with these points. The operator does not have to provide POPLA with a breakdown of the charges as the charge amount is prominent on the signage.

I note you have mentioned the contract provided in the case files is a photograph and not a scanned copy.

Having reviewed your original grounds of appeal you did not bring this to us, and as such I cannot comment on this.

I also note you have raised comments that the operator claims that it has passed an audit and meet the BPA guidelines but has not provided evidence of this. This was not raised as an original ground of appeal when appealing to POPLA and as such I cannot consider this.

The motorist comments section is to be used to expand upon the original appeal points raised with POPLA and not to be used to raise new issues that the operator has not had the opportunity to address. POPLA allows appellant!!!8217;s 28 days at the start of the appeal process to bring their grounds of appeal to us and as such I am unable to consider these new grounds.

As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.

As our involvement in your appeal has now concluded you may wish to pursue matters further. For independent legal advice, please contact Citizens Advice at: https://www.citizensadvice.org.uk or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).

In closing, I am sorry that your experience of using our service has not been positive. We have reached the end of our process and my response now concludes our complaints procedure. I trust you will appreciate that there will be no further review of your complaint and it will not be appropriate for us to respond to any further correspondence on this matter.

Yours sincerely


Amy Smith
POPLA Complaints Team

Umkomaas

That looks to be it from a POPLA point of view. You do know that their decision is not binding on you, so you can just ignore this unless you receive a Letter Before Action/Court or real court papers. Chances of court:

http://www.parkingappeals.info/companydata/Lodge_Parking.html

How safely and securely have Lodge handled your personal data? Why not find out by dropping a SAR-bomb on them? Doing so will give them so much hassle to deal with and will turn the tables on them. Here's some advice on how to go about it:

https://forums.moneysavingexpert.com/discussion/5849784/june-2018-start-of-the-new-ppc-and-dvla-fightback-gdpr-related

Coupon-mad

Oh dear (sorry but this was an awful POPLA appeal, no-one should lose v Lodge Parking Limited, this must be their first POPLA win...):

I have read your grounds of appeal to POPLA and you have stated:

''my car was parked at High Green Court Car Park, Cannock on the evening of 16/2/18 as I have done on many an occasion of an evening previously. I have always parked here of an evening in the past without issue, as the car park is free of charge to park after 6pm, as are the other car parks in town, which are council owned. I returned to my car to find a ticket had that been issued within minutes of me leaving my car (I know this to be the case as I sent an SMS on my arrival). The car park in question has no clear signage to explain that the relevant parking restrictions have changed.

Furthermore, the charge of £100 is disproportionate and not commercially justifiable, in light of the fact that I have since established that the cost to park between 18.00 and 07.59 is £1.00.''

Having read these grounds of appeal the assessor was satisfied that you were the driver and I agree with their judgement.

And I agree with POPLA on that. Had you appealed as keeper, you'd have won.

You also wasted a lot of words talking about 'not a GPEOL' which has no legs in an appeal, and hasn't done, since the Beavis case in 2015. None of that was suggested to you by this forum.

Ignore them now unless a court claim starts. Do a SAR though, as suggested by Umkomaas, above.

Next time, come here first...this is sooo frustrating as it would have been a cinch to win!

LittleMissParker

Thanks for the comments. I will do the SAR. I just need to read it again (maybe a few times) so I fully understand it!

My biggest frustration is having not found this forum sooner. I didn!!!8217;t realise how much the ntk would have assisted at the time, and thought that if I didn!!!8217;t identify the driver they could still come for me as the rk regardless.

I was thinking of sending the below - thoughts? Amendments?

Thanks in advance

Dear Amy,
Thank you for taking the time to reply to my email.
Whilst I appreciate that POPLA is a one step process, I wish to seek clarification on two points.
1. I refer to your original email to me, dated xx/xx/xx in which you advised !!!8216;Please find attached to this email the operator!!!8217;s evidence pack. POPLA will allow you 7 days from today to provide your comments. If we do not receive any comments by close of business on Monday xx June 2018 we will assume you have none to make and will just respond to the comments within your complaint email.!!!8217;

This however is at odds with your email yesterday whereby you advise:
!!!8216;I note you have mentioned the contract provided in the case files is a photograph and not a scanned copy. Having reviewed your original grounds of appeal you did not bring this to us, and as such I cannot comment on this.!!!8217;
!!!8216;I also note you have raised comments that the operator claims that it has passed an audit and meet the BPA guidelines but has not provided evidence of this. This was not raised as an original ground of appeal when appealing to POPLA and as such I cannot consider this.!!!8217;

These issues were not raised as original grounds of appeal as these were elements submitted in the operator pack which I provided my comments on, as advised to in your original email above. Otherwise, I fail to understand the opportunity to provide comments if they are not going to be considered!!!8230;


More importantly -
2. As missed in the operator pack by Richard in his initial assessment, and as per the opening to my comments submitted to you on xx/xx, !!!8216;Primarily, in the opening to their case summary, the registration is documented by the operator as !!!8216;xxxx xxx!!!8217;, and it is stated in their opening paragraph, 'On xx/xx/xxxx, the above vehicle was parked at High Green Car Park in Cannock'. I am not the registered keeper of this vehicle, nor do I have any link to this vehicle. I therefore deem their appeal to be invalid, and find it extremely concerning that the assessor not only failed to follow the correct POPLA procedure, but also failed to notice this and allow the appeal on this basis.!!!8217;

The fact that this is the registration that the operator is basing their case on and referring to has been ignored by POPLA twice now. There has been no acknowledgement to this whatsoever !!!8211; granted, it could have been missed by Richard, but I was assured that a full review of the case would take place by yourself and cannot help but question whether this review has been rushed, having had to personally chase up the response on the 10th working day.


Is it worth copying in anyone else at all?

Umkomaas

I therefore deem their appeal to be invalid

'evidence'.

Is it worth copying in anyone else at all?

You could throw one at the DVLA, making sure that the POPLA copy is clearly marked 'cc DVLA, Swansea'. It might make them think twice about a quick fob-off, but I don't think this is salvageable - POPLA will simply stick their fingers in their ears and sing 'La la, la la...'.

!!!8217;

For any future posts here, as yours are riddled with the above (and similar), would you please switch off the Smart Punctuation on your iOS device. This makes reading them, especially lengthy posts, very difficult, and we might miss something important.

It will remove anything similar from any future posts you make, but unfortunately copy and pastes of other people's inputs will still carry the fault and will need to be tidied manually.


Go to 'Settings' > 'General' > 'Keyboard' > 'Smart Punctuation' and flick the switch off.

Switching off seems to have no detrimental affect on any other use of the keyboard.

LittleMissParker

Ah thank you - I did wonder about the !!!81627282 issue - it was annoying me so I can only apologise to you guys! Will sort right now.