POPLA Submission for PCN at Arena Shopping Center Coventry

whitepanda

Hi All
Im about to submit a POPLA appeal and just wanted to check that I had not got anything wrong or missed anything.
The driver of my vehicle received a PCN at the Arena shopping center in Coventry, had an appeal refused and received a NTK. So next step is to appeal to POPLA as below. Any advice would be much appreciated.

I, the registered keeper of this vehicle appeal this Parking Charge Notice on the following points:
1) The company (Park Watch Limited, Company No. 08798058) that issued the PCN (see below) and from which payment is requested, is not listed as a BPA member, despite displaying the BPA logos on the reverse of the ticket.
Their sister company (Defence Systems Limited, Company no. 08047971) is a BPA member, but this is a separate legal entity and not whom the payment is due to, according to the PCN.
We therefore conclude that Park Watch Limited does not comply with the BPA code of practice, does not have the right to issue the PCN and is not permitted to obtain DVLA records under the relevant data protection legislation.
2) The operator has not provided evidence of Landowner Authority or their policy with the landowner as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 or proven full compliance with the BPA Code of Practice.
As this operator does not have proprietary interest in the land then we 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 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 we 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

3) The signage at the specific location where the vehicle was parked fails the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The unremarkable signs were not seen by the driver and the terms are not easily readable to drivers. I have photographic evidence (see below) that the signs are not visible and legible from the parking bay in which the vehicle was parked. In addition, the signage at the entrance to the car park cannot be read safely from a moving vehicle.
Therefore, there was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.
We have included the 'Beavis case' sign (see attachment C) as a comparison to the signs under dispute in this case. The signage in this case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
At the car park in question, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is not legible from the parking space in question, which should be the case as the driver must read them BEFORE the action of parking and leaving the car.
Note that 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice. Areas of this site are unsigned and there are no full terms displayed, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
The Beavis case signs not being similar to the signs in this appeal at all, we submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgment is binding case law from the Court of Appeal and supports our argument.
This case found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to, and cannot have 'breached', an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured and not adjacent to the car, so could not have been seen and read from a driver's seat before parking.
So, for this appeal, we put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, we require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. We 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 will not be sufficient to disprove this.

4) We demand to see the current contract for the car park that is used for a variety of shops including Tescos. As there is a known clause that Tesco sees the car parks for customers and takes no action on the first offence only on the second or third offence via the operator. The operator that Tesco contract must follow Tesco rules as it is important to Tesco that customers return. Tescos main business is selling items in their stores not parking. The driver was a genuine customer at the retail park. As shown in the receipt below from Decathlon the time leaving was only 10mins after the ticket given. As a genuine customer the parking rules are designed to stop non customers parking not to penalise actual customers and stop them from coming to the retail park again.

5) The vehicle in question was parked slightly on corner hatching due to the large 4x4 car in the next space parked so close to the line that there was no room for the passenger to get out, or for the driver of the parked 4x4 car to get back in when returning. The way in which the car was parked was not preventing others from parking or was it obstructing anyone or another vehicles from parking (as shown below). The car was parked in a sensible way in order to stop damage to the 4x4 car parked besides when opening the passenger door.
We therefore consider that the charge is disproportionate and not commercially justifiable. The amount Park Watch Limited have charged is not based upon any commercially justifiable loss to the company or the landowner. In this case, the £100 charge far exceeds the cost to the landowner and we therefore feel the charge is excessive and represents a penalty.
​

Coupon-mad

Please no ''I'' followed by a comma or it send me ''on strike''! Horrible grammar, a split infinitive - please put it right.

Grammar pedant mode now off.

We therefore

We demand

We? You mean I (no comma!!).

Why no section on 'no keeper liability' because the ParkWatch NTK is (probably) unlikely to be POFA compliant in wording?

Why no 'the appellant has not been shown to be the individual liable' as well?

whitepanda

Thanks for the fast reply.
Yep, will get the bad grammar changed, from what I have read the NTK seems to be POFA compliant referring to paragraph 9(2)(b) of schedule 4 etc, so thought it best to remove that part but can add it back in if its not going to confuse the appeal.
I also didn't add 'the appellant has not been shown to be the individual liable' as the NTK seems to POFA compliant.
Have I got that bit confused and should keep it all in?

Many thanks

Coupon-mad

The driver of my vehicle received a PCN at the Arena shopping center in Coventry, had an appeal refused and received a NTK. So next step is to appeal to POPLA as below.

I would urge you to complain to the Store Manager and the Retail Park before even trying POPLA.

That is the easiest way to cancel any private scam PCN, by complaining to the retailer you used to spend your money at, telling them how harassed and angry this has mad you feel, and that you are planning on never using the retail park again, and you require that they tell their aggressive ex-clamper parking agent to 'do one' and cancel the fake PCN.

whitepanda

Yep I emailed the Coventry Decathlon store first on the same day as the PCN. Reply below from the store manager:

We have no way off getting in contact with the parking contractor so would be unable to get the Parking Charge cancelled. Sorry we can not help further with this issue.

Coupon-mad

What about the second suggested complaint I typed above? RETAIL PARK.

Who do you think contracted these dogs and who do you think can call them off?

whitepanda

Thanks, just emailed them. Will see there response before going to POPLA

whitepanda

That didn't go as well as expected:

Good Morning
Thank you for your email.

I appreciate your information however we have over 100 signs located in the carpark that stipulates about parking restrictions. Please see attachments of one the signs located in the car park.

Arena Shopping Park aim to ensure that all parking spaces are used correctly for the benefit of our customers. To ensure this happens Park Watch are monitoring any abuse/incorrect parking in bays across the car park, along with any parking in non-designated parking areas.

If you feel you would like to appeal against a PCN issued, then please contact info@parkwatch.co.uk.
If you are not happy with Park Watch’s response you will need to contact POPLA who are an independent appeal service, they will stand by the decision made by the independent agency.

Kind regards,

Coupon-mad

we have over 100 signs located in the carpark that stipulates about parking restrictions.

Over 100 signs? Are they having a laugh?

whitepanda

Unfortunately after a long wait I was unsuccessful as shown below. What do you recommend now?

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 explaining the terms and conditions, as displayed on signs throughout the site. The signage states: “THIS LAND IS PRIVATE PROPERTY…Failure to comply with the following terms & conditions may result in a parking charge…Always Park Within Lines…£100 Parking Charge”. The operator has provided images which show the appellant’s vehicle, XXXXXXX, The vehicle is not parked within the lines of the bay. The operator has issued the PCN as motorist did not park the vehicle wholly within a bay. The appellant’s case is that the operator that issued the PCN is not a member of the British Parking Association (BPA) despite displaying the BPA logos on the reverse of the PCN. The appellant says that the operator does not comply with the BPA Code of Practice and does not have the right to issue PCNs or obtain DVLA records under the relevant data protection legislation. The appellant says that the operator has not shown that the individual it is pursuing is the driver and that it has not complied with the Protection of Freedoms Act (POFA) 2012. The appellant says that the operator has not provided evidence of landowner authority and it does not have proprietary interest in the land. The appellant says the signage in the specific location that the vehicle was parked is insufficient and does not draw motorists attention to the sum of the PCN. The appellant says the signage at the entrance of the car park cannot be read safely from a moving vehicle. The appellant says there is a known clause in the operator’s contract with the landowner that states motorists should not be pursued for a payment of a PCN if it is their first offence. The appellant says the vehicle was parked slightly on corner hatching as a large 4x4 vehicle was parked so close to the line in the next space. The appellant says there was no room for the passenger to get out of the vehicle or the driver of the 4x4 to get back in their vehicle. The appellant says they parked in a sensible manner so that they were not causing an obstruction. The appellant says they PCN is disproportionate and not commercially justifiable. The appellant says they £100 charge far exceeds the cost to the landowner and represents a penalty. As the driver has not been identified within the appeal to POPLA or to the operator, I need to ensure that the operator has shown strict compliance with the Protection of Freedoms Act (PoFA) 2012. PoFA 2012 is used to transfer liability from the driver of the vehicle to the keeper of the vehicle when the driver has not been identified. I have reviewed the Notice to Keeper and I am satisfied that the operator has shown strict compliance with PoFA 2012 and as such, liability has been transferred to the keeper of the vehicle. Operators do not have to be a member of the BPA to issue PCNs. I can confirm that Defence Systems Limited t/a Park Watch are a member of the BPA. POPLA can only assess PCNs issued by operators that are members of the BPA. If the operator was not a member of the BPA, I would be unable to assess this appeal. If the appellant has genuine concerns about whether the operator is entitled to obtain DVLA records under the relevant data protection legislation, they may wish to speak to the Information Commissioner’s Office (ICO). It is not within POPLA’s remit to assess complaints about data protection. The operator has provided a copy of a call off order that is signed on behalf of the landowner to demonstrate that it has the landowner’s authority to enforce the parking restrictions and issue PCNs at the site between 16 September 2016 and 30 September 2019. I have not received evidence that Tesco is the landowner or there is a well known cause that the operator should not pursue motorists for payment of a PCN if it is the first time they contravened the terms and conditions. Ultimately, it is the responsibility of the motorist to ensure that when they enter private land, they have understood and complied with the terms and conditions displayed throughout the site. While I agree that the appellant may not be able to read all the information on the entrances signs, I am satisfied that the entrance signs are sufficient to make motorists aware that the site is managed and there are terms and conditions that they should be aware of. The signage within the site is sufficient to make motorists aware that they are required to park within the lines of a bay. The signage also makes motorists aware of the consequence for failing to comply. The operator had provided photographs to demonstrate that the signage was visible from the area that the appellant parked. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. I acknowledge that a large vehicle was parked close to the line in the neighbouring bay and the appellant’s vehicle may not have caused an obstruction; however, if the appellant felt that they could not comply with the terms and conditions by parking within the lines of a bay, the appellant could have looked for another bay. Alternatively, there would have been sufficient time to leave the site without entering into a contract with the operator. By remaining on the car park and parking their vehicle while they visited the stores on site, the appellant made use of the car park and accepted the terms and conditions displayed. As such, they were required to park within the lines. The operator has provided photographs to demonstrate that the appellant’s vehicle was not parked within the lines. Accordingly, I must conclude that the motorist breached the terms and conditions of the car park. 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 the BPA Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. 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 “adequate notice” of the charge. POFA 2012 defines “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. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. As the operator has demonstrated that it issued the PCN correctly, I must refuse this appeal.

Redx

its either pay or fight, the fight is waiting for 6 years in case PWL try an MCOL


in which case come back if you receive a formal LBC or an MCOL in the post , within 6 years