CEL Appeal unsuccessful..POPLA stage help!

bill1984y

just an update,
I have received a letter from POPLA with a response from CE.

How do i post up the response on here?

Redx

copy and paste any relevant parts


use a hosting site and add a link to it


and read recent POPLA rebuttals over the last 2 years and use those to draft your own rebuttal (2000 characters maximum)

bill1984y

RESPONSE TO POPLA APPEAL

1. There are many clear and visible signs displayed in the car park advising drivers of
the terms and conditions applicable when parking in the car park. Drivers are
permitted to park in the car park in accordance with the terms and conditions
displayed on the signage. These signs constitute an offer by us to enter into a
contract with the drivers.

2. Our Automatic Number Plate Recognition (ANPR) cameras recorded the Appellant’s
vehicle, registration number in the car park during the date and time shown on the
front summary sheet of this appeal.

3. There is more than adequate signage in the car park, as can be seen from the
attached site plan. Furthermore, the car park has sufficient lighting and warnings for
the Appellant to have acknowledged the signs, and which the Appellant accepted by
their actions.

4. We refer you to the Court of Appeal authority of Vine v Waltham Forest London
Borough Council [2000] 4 All ER 169 which states:

“the presence of notices which are posted where they are bound to be seen,
for example at the entrance to a private car park, which are of a type which
the car driver would be bound to have read, will lead to a finding that the car
driver had knowledge of and appreciated the warning”.

5. The nature of the relationship between the Appellant and our company is
contractual. The car park is private land and consequently drivers require permission
before parking on the land. The Company granted permission by way of making an
offer in the signs displayed in the car parks and the Appellant accepted that offer
and the terms set out on the signs by their conduct in parking on the land.

6. As previously stated, there was ample signage throughout the site, such that the
Appellant had an opportunity to read them, including signage at the entrance to the
car park.

7. The British Parking Association advises all motorists:
“Regardless of whether they park in private car parks, Council car parks
or on-street, motorists should always park properly and always check
any signage displayed to make sure they know and understand the rules
that apply. This is especially so if they are visiting for the first time - in
order to acquaint themselves with the prevailing Terms & Conditions for
parking.”

When parking on private land a motorist freely enters into an agreement to abide by
the conditions of parking, in return for permission to park. Therefore, the onus was
on the Appellant to ensure that they could abide by any clearly displayed conditions.
Unfair Terms in Consumer Contracts Regulations 1999 - Our Charges

9. The charge sought is a contractual term, which is within the recommended British
Parking Association (BPA) guidelines, and is compliant the BPA code.
10. The Supreme Court, in their judgment of the recent Parking Eye v Beavis appeal,
stated that:

“…the charge does not contravene the penalty rule, or the Unfair
Terms in Consumer Contracts Regulations 1999.”

A summary of the Supreme Court’s judgment in the case of ParkingEye v Beavis has
been included in the Operator’s evidence pack, but can also be accessed using the
following link:

11. We submit that the charge does not cause a significant imbalance of the parties’
rights and obligations arising under the Contract. Furthermore, Lord Neuberger and
Lord Sumption asserted the following in the above Supreme Court judgment:

“Any imbalance in the parties’ rights did not arise ‘contrary to the requirements
of good faith’, because ParkingEye and the owners had a legitimate interest
in inducing Mr Beavis not to overstay in order to efficiently manage the car
park for the benefit of the generality of users of the retail outlets.”

It would therefore be erroneous to conclude that the sum claimed must be a genuine preestimation
of loss.

Additional Notes

12. The Notice was issued as the Driver failed to obtain an electronic permit for the
vehicle, registration *******. Electronic permits can be obtained by entering your
vehicle registration on the touchscreens provided inside the facilities.

13. This Parking Charge Notice was issued under Schedule 4 of the Protection of
Freedoms Act 2012. As Mr ******* has failed to provide us with the driver’s
details within 28 days, we are holding him liable as Registered Keeper. Please find
enclosed a copy of his original appeal. Furthermore, we refer to his comments on
POPLA portal regarding attached evidence. We have emailed POPLA team since
there were no attachments on portal, however we were assured that Registered
Keeper did not submit any evidence.

14. We refer you to the attached photographic evidence of the vehicle, captured by our
Automatic Number Plate Recognition (ANPR) cameras, entering the car park at
10:51 and departing at 11:07 (total duration of 16 minutes).

15. Signage in the car park clearly states “PERMIT HOLDERS ONLY –
MEMBERS/VISITORS MUST REGISTER FOR A PERMIT INSIDE SMALL HEATH
WELLBEING CENTRE OR THE LIBRARY. If you breach any of these terms you
will be charged £100.”
16.The grace period was taken into consideration before issuing the Notice, and we
have deemed this incident to have exceeded the allowed grace period. Please note
that whilst we do not advertise the grace period on signage, it is compliant with the
guidance provided by the British Parking Association in their Code of Practice, which
states that motorists should be allowed 10 minutes in which to decide if they are
going to park or not.

17. Whilst we appreciate the Appellant’s submissions, we are unable to take into
account mitigating circumstances; the terms and conditions of parking were clear.
Furthermore, the Appellant failed to utilise the operator’s helpline phone number
(displayed at the bottom of signage) to report the occurrence, or to request advice
on what further action could be taken.

18. The Blue Badge handbook clearly states that displaying a Blue Badge does not
entitle badge holders to any parking privileges on private property “off-street car park
operators should provide parking spaces for disabled people. However, it is up to the car park owner to decide whether badge holders can park free of charge. Do not
assume you can always park for free”.

19. There are many clear and visible sings in the car park, as evidenced by the attached
image plan. It should be noted that drivers have an obligation to check for signs when
parking on private land - the signs do not need to be placed directly in the
position where they parked, they simply must be placed throughout the site so
that drivers are given the chance to read them (BPA Code of Practice, 18.3).

bill1984y

POPLA have asked for comments as CE have provided images of signage across the car park and given 'Beavis Supreme Court Judgment (Summary)' as evidence as well this well written response.

Do i cave in and pay the fee??!! or can i still beat CE??

Its slightly annoying to read point 18, as there are only two disabled spots in the car park which were taken the driver couldn't possibly park and enter the damn facility to enter the car details in the first place!

Redx

so the driver should have left promptly, seeing as both of the disabled spaces were full, then returned later

check their evidence pack for

a valid current contract with the landowner or agent

check if the NTK arrived within 14 days (by day 15) or not (POFA2012 liability)

any BPA CoP failures

signage issues

etc

you are looking for flaws in their pack, or omissions where they have not rebutted your appeal points, by not rebutting any they are deemed to have accepted that particular point

then construct your rebuttal in notepad

Coupon-mad

POPLA have asked for comments as CE have provided images of signage across the car park and given 'Beavis Supreme Court Judgment (Summary)' as evidence as well this well written response.

Nope. POPLA have asked for comments because they have to; this is standard.