CEL PPOPLA appeal advice

gjs1701

My partner was issued a PCN and I have been appealing it with Civil Enforcement Limited.

We parked and attempted to pay. We did not have enough change so she rang the payment line and tried to pay via that. After being cut off several times, she got through only to be given an incorrect location, so she did not pay and we left the car park. We had been parked for 16 minutes according to the PCN.

In my initial appeal, I described her attempts to pay and so have implied that she was the driver.

I also tried the POFA time limit defense, but CEL dismissed that, as their PCN doesn't mention POFA.

So on to POPLA.

I have read through the AOS code of practice and think I have several grounds for appeal:

1. Grace Period, while we were parked over the 10 minute minimum grace period, we were actually trying to pay and have a phone bill to show it.

2. Entrance signage. The entrance to the car park sign does not bear the required AOS logo, nor mention who manages the car park.

3. Photo evidence. The PCN gives ANPR photos but they do not bear date stamps as required.

We are considering returning to the car park, but since it is 2hours away, it would be quite a trek to photograph signs and check for ANPR signs.

Are these reasonable grounds to appeal?
Is it better to with the grace period defence as that is the strongest to my mind?

Redx

frustration of contract is probably point number 1

POFA2012 failure as point 2 , no keeper liability

grace periods should also be included as say point 3

no landowner contract - point 4

poor and indequate signage - point 5

photo evidence failures - point 6

not the same as the BEAVIS case - point 7

put them to strict proof on any and all counts that you can muster, not just the BPA CoP

Fruitcake

Use those points plus any others that are relevant from post 3 of the NEWBIES such as
Not the Landowner.
No standing to issue charges in their own name.

Make sure you use the long Inadequate Signage point and quote both grace periods, each of ten minutes.

You can use non POFA compliant NTK but only if they don't know the driver's identity. It will depend on exactly what you put in the initial appeal.

Add frustration of contract since there was a problem with the 'phone payment system.

Post your draft here for checking before you submit ir.

Coupon-mad

I also tried the POFA time limit defense, but CEL dismissed that, as their PCN doesn't mention POFA.

Why didn't you simply send the template from the NEWBIES thread? CEL cancel, no POPLA, when they see it. EASY.

Do you understand why it didn't matter that CEL dismissed the point about them using a non POFA PCN? You act as if it matters and they swatted the point into oblivion. They haven't - and they never use a POFA PCN, and it's 100% winning point...but, but.

But did you swat the 'no keeper liability' point into oblivion anyway in your words?

In my initial appeal, I described her attempts to pay and so have implied that she was the driver.

Whose name did you appeal in, hers as registered keeper and blabbed about her driving? Or in your name but saying she was driving?

Why oh why write your own? Have you blown this appeal for her, please say not.

gjs1701

I appealed in her name and the appeal included phrases such as "I tried to pay..." and "I left the car park...", so I'm pretty sure I've blown the driver/owner defence.

I did a quick search online and found the POFA defence, not realising that parking companies could get round that. I also naively thought that our multiple attempts to pay would elicit a common sense response from CEL.

So now I need to what I should have done in the first place and read deeply into these forums, up my game and make a POPLA appeal on her behalf.

Coupon-mad

not realising that parking companies could get round that.

They could not have got round it. It was a slam dunk win for her.

In fact I would include the POFA in the POPLA appeal and all the other points you find in any CEL POPLA thread recently. In our experience, with a very long POPLA appeal, CEL may well offer 'no contest'.

Hence I would work on the basis that she has not blown it and see how the entire appeal is viewed by CEL, and the Assessor, as she didn't write 'I parked'.

I say this mainly because it's CEL who are so likely not to contest it.

gjs1701

My draft:

POPLA Verification Code:
Vehicle Registration:

I, the registered keeper of the above vehicle, received a letter as a Parking Charge Notice dated xx 2018. I submitted my appeal which was denied in a latter dated xx 2018. I contend that I, the keeper, wish to contend it on the following grounds:

1. Frustration of Contract
2. The Operator has not shown that the individual it is pursuing is liable for the charge
3. Grace Periods do not comply with the BPA Code of Conduct.
4. Vehicle images on the PCN do not comply with the BPA Code of Conduct
5. No evidence to show the full period of parking
6. The Entrance sign does not meet the BPA mandatory requirements.
7. No Evidence of Landowner compliance

1. Frustration of Contract.

I consider that Civil Enforcement Ltd failed to take payment and so the doctrine of Frustration of Contract applies. In the absence of sufficient coinage to pay for parking a call was made to the Claimant’s payment line. This, and 5 subsequent calls were cut off at various points during the process of attempting to pay. The seventh call reached the end of the process, only to state an incorrect car park location and fee. As the driver could not make payment, the driver could not enter into a contract with the claimant any charges arising from breach of contract cannot apply.
Please see attached telephone bill, fig 1.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon,
POPLA must first consider whether they are confident that the Assessor
knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay.
I am the keeper throughout (as I am entitled to be), and as there has been no
admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party. The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

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

“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 ‘reasonable presumption’ 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”.


Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA. This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.'



3. Grace Periods do not comply with the BPA Code of Conduct.

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

As the period refered to in the PCN is 16 minutes and 17 seconds, the PCN clearly does not allow for these grace periods.

BPA’s Code of Practice (13.1) states that:

“Your approach to parking management must allow a driver who enters
your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA’s Code of Practice (13.2) states that:
“You should allow the driver a reasonable ‘grace period’ in which to decide
if they are going to stay or go. If the driver is on your land without
permission you should still allow them a grace period to read your signs
and leave before you take enforcement action.”

BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.
If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to
read the terms and conditions before they enter into the contract with you.
If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to
leave, as they will not be bound by your parking contract.”

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking
Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for
the motorist to park their car, observe the signs, decide whether they want
to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

4. Vehicle Images on the PCN do not comply with BPA’s Code of Practice.

The BPA’s Code of Practice (31.1) states:
“You may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

In this case the photographs do not include a date and time stamp. It does not show the location of the car park where claimant states the incident occurred, nor is any number plate visible in either photograph.

5. No Evidence to show full period of parking.

Contrary to the mandatory provisions of the BPA Code of Practice, there is no
record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”.

Most notably, paragraph 9(2)(a) requires the NtK to:
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Civil Enforcement Limited’s NtK shows images of a vehicle entering and leaving the car park which are used to calculate its “length of stay”. It is not in the gift of Civil Enforcement Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Civil Enforcement Limited are not able to definitively state the period of
parking.

I require Civil Enforcement Ltd to provide evidence to show the vehicle in question was parked on xxx/18 (for the duration claimed) and at the location stated in the NtK.


6. The Entrance Sign does not meet the BPA Code of Practice Mandatory Requirements

The entrance sign to the car park fails to note who the car park is managed by (see figure 2).

The BPA Code of Conduct (Appendix States:

“ “Managed by” is required”


It fails to show that terms and conditions apply and where such terms can be found.

The BPA Code of Conduct (Appendix states:

“You must always mention that terms and conditions apply and say where to find more details about them.”


It fails to show the blue and white ‘P’ symbol. In this case public parking is invited.

The BPA Code of Conduct (Appendix States:

This blue rectangle with the ‘P’ symbol can be left out if public parking is not invited and it is trespass you are managing.


The BPA AoS roundel is not displayed.

The BPA Code of Conduct (Appendix States:

“If you do not have the ‘P’ symbol, you may move the AOS roundel to the bottom of the sign alongside the operator’s name.”


7. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The
contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or
any site occupier's 'right of veto' charge cancellation rights - is key evidence to
define what this operator is authorised to do and any circumstances where the
landowner/firms on site in fact have a right to cancellation of a charge.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by
POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply.
Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA Code of Practice defines the mandatory requirements
and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking
charges, they must ensure that they have the written authority of the
landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:
a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d. who has the responsibility for putting up and maintaining signs
e. the definition of the services provided by each party to the agreement.

Coupon-mad

the BPA Code of [STRIKE]Conduct.[/STRIKE] Practice.

7. No Evidence of Landowner [STRIKE]compliance[/STRIKE] authority

And remove the ungrammatical awful version someone created, with ''I'' followed by a comma which reads terribly and grates every time we see it!

I am the registered keeper of the above vehicle and I received a letter as a Parking Charge Notice [STRIKE]dated xx 2018. I submitted my appeal which was denied in a latter dated xx 2018. I contend that I, the keeper,[/STRIKE]

I wish to contend it on the following grounds:

1. Frustration of Contract
2. The Operator has not shown that the individual it is pursuing is liable for the charge
3. Grace Periods do not comply with the BPA Code of Conduct.
4. Vehicle images on the PCN do not comply with the BPA Code of Conduct
5. No evidence to show the full period of parking
6. The Entrance sign does not meet the BPA mandatory requirements.
7. No Evidence of Landowner compliance


1. Frustration of Contract.

I consider that Civil Enforcement Ltd failed to take payment and so the doctrine of Frustration of Contract applies.

In the absence of sufficient coinage to pay for parking a call was made to the Claimant’s payment line. This, and 5 subsequent calls were cut off at various points during the process of attempting to pay. The seventh call reached the end of the process, only for the person at the other end of the line, to state an incorrect car park location and fee, making it impossible to actually may for this location.

And so the vehicle left the site, to seek alternative parking.

[STRIKE]As the driver[/STRIKE] I was an occupant of the car but the driver has never been admitted. We could not make payment, so the unnamed driver could not enter into a contract with the [STRIKE]claimant[/STRIKE] operator, and any charges arising from breach of contract cannot apply.

Please see attached telephone bill, fig 1 and again I reiterate that I was an occupant of the car but the driver has not been identified at any point.

gjs1701

Our appeal is sent. Many thanks for your assistance.

Watch this space...

gjs1701

Just a quick update. We received CELs response from POPLA. It included a picture of the sign from the car park which showed the payment line from the car par and the reference number. I was able to ring this number and record the call, and it definitely stated a different location than the car park we tried to park in. So I was able to point that out.

They had better ANPR images, which I pointed out didn't matter as they weren't what was on the PCN.

They bought up Beavis, but I responded that I wasn't disputing the amount of the penaly.

They had a map showing sign locations, I said I wasn't disputing quantity of sign, but that the signs didn't meet the requirements in the code of practice.