Hirecar Parked in own Bay (P4 Parking) - Appeal Succesful

infinityx

Thank Coupon Mad

I made one slight change from what i posted above, but what i put in the appeal was as followed:

Re: P4Parking PCN, reference code xxxxxxxxxx
POPLA Code: Requested

I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require ALL photos taken and an explanation of the allegation and your evidence.

Please take into consideration that Bay 58 in which the charge was placed, is contractually allocated to Flat 58 (Address of Flat). As such any car in this allocated spot has the right to quiet enjoyment.

Please waive the charge in question. Should you later pursue this charge by way of litigation, service of any legal documents by email is expressly disallowed.

Yours faithfully,

Here is a close up of the sign in the parking spot.

ibb.co/sgv7Qhq

Le_Kirk

Your link made live: -
http://ibb.co/sgv7Qhq

Coupon-mad

OK so your POPLA appeal will be firstly about no hirer liability.

Search the forum for POPLA hirer documents.

infinityx

Hi Everyone, due to family commitments i didn't get time to write up the appeal until this weekend. Here is a draft that i plan on submitting hopefully today. I think tomorrow is my last day as its 28days.

PDF version
drive.google.com/file/d/1uvX_a3g4mzZqJC7fIpIUxpR9EWZaWa4z/view?usp=sharing

infinityx

Text (as i cannot post images)
I am the Hirer of the vehicle and I wish to appeal a recent parking charge from P4 Parking. I submit the points below to show that the driver is not liable for the parking charge:

Summary of Sections:
1. Primacy of Contract - This charge is incompatible with the rights under the lease - as decided by the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016.
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. The signs in the car park does not apply to Residents as they specifically do not contravene the parking regulations as established on the sign
4. The signs in the car park are not prominent throughout the car park, clearly legible from within all spaces
5. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis

Details
1. Primacy of Contract - This charge is incompatible with the rights under the lease - as decided by the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016.

District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

Attached to this appeal is a copy of the tenancy agreement that states:

“Agreement At a Rent of £1300 Per Calendar Month Inc Bay No 58”

As in the case referenced above there are no conditions attached to the use of the parking bay and these cannot be unilaterally enforced outside of the contract. A similar conclusion was reached in Link Parking v Ms P C7GF50J7 [2016] which was influences by the Pace Recovery case and where it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.
I also refer to the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised use of the bay, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for use of a parking bay by a driver who has legitimate business and rights to do so.

As a final note, in the complex in question there are many communal parking bays marked with a “V” for visitor. As it stands, the primary purpose of car park management at a residential site is to stop non-residents from parking in these communal bays without authority. No reputable car parking company would target the residents and refuse to cancel a parking charge, issued to a resident.

Image of Visitor Parking Image of Resident Parking (Marked Bays)
Further to the final point the location of the car in question was further quarantined from visitor spots via secure gates that can only be accessed by residents of the specific building via a Key Fob. i.e. other residents of other building in the complex do not have access to the underground secure car park. The car park is also not connected to the other first level thereby minimising the number of residents with access to the car park. As shown in the photographs below. It stands to reason that ONLY residents have access to the specific area.

Image Resident only parking (Secured)

Image Require Key Fob

2. 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.

Paragraph 7 of the BPA CoP 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

3. The signs in the car park does not apply to Residents as they specifically do not contravene the parking regulations as established on the sign:
The statement to the effect that “All vehicles parked within these private grounds, and not displaying an authorised parking permit or parked outside of the developments parking regulations will be charged via the issuance of a parking charge notice”
For a normal person this would read as
1. For all vehicles parked in these private grounds and
Either
2. Not displaying an authorised parking permit OR
3. Parked outside of the developments parking regulation
Will be charged via the issuance of a parking charge notice.
The statement is subsequently following by 5 contravening points (assumed to relate to the parking regulation). Of the 5 contravening points noted, point 3 specifically establishes where a visitor should get a visitor permit, however Point 5 which relates to a resident there is no specific mention of having to obtain a permit.
As it stands to reason, a resident is entitled to park in their own bay without the need for a permit which gives additional support to the concept of primary of contract whereby the signage can not vary an already existing contract. i.e. point 1 and 3 was not contravened and point 2 does not apply.

Image supplied by P4 Parking from first appeal

4. The signs in the car park are not prominent throughout the car park, clearly legible from within all spaces.
I am of the view that the signage at the site - given the minuscule font size of the £100, which is illegible in most photographs - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.
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.
Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:



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.



Image supplied by P4 Parking from first appeal

Here, the signs are sporadically placed, they are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''


So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I 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. 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 will not be sufficient to disprove this.

5. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis

The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.

In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed appeal point 2 shows that a District Judge in a 2016 case supports my view.

infinityx

Welp it turns out today was the last day to submit the appeal. including the date the rejection letter was dated (10/09/2019) i recalculated that 28 days falls on today. My mistake.

Anyway had to submit as is. Got a bit confused by the 2000 character limit and had no time to change my appeal so had to submit everything in Other and for the other sections i simply said to refer to the detailed appeal pdf in other section. What a mess, should have started this weeks ago but I new at the beginning i wouldn't have time

KeithP

infinityx wrote: »

Anyway had to submit as is. Got a bit confused by the 2000 character limit and had no time to change my appeal so had to submit everything in Other and for the other sections i simply said to refer to the detailed appeal pdf in other section.

You make it sound like 'other' was a second best choice.

Post #3 of the NEWBIES thread says:

These then get saved as PDFs and uploaded to POPLA under OTHER (ONLY) - do not think you only have 2000 characters in some box on the POPLA wepage!

infinityx

BAH, clearly i didn't read properly hope it doesn't affect the application since i included the Parking charge doesn't apply and then 4 sub sections of which one was other.

infinityx

Well seems like P4Parking didn't want to contest the second appeal so I dont have to pay the fine.

Thanks everyone, managed to scrape through in the nick of time but without all the posts people put in this forum, i couldn't have submitted a case as well defined. I hope this thread helps others with their appeal in the future.

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 5162539011.

P4 Parking - EW have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team