New OPS PCN

paul9619

Good morning all,
Looks like OPS have expanded to the South West.  I have recently received a PCN as the registered keeper for my car entering a private road stopping for a short period (engine running and remained in car) for a grand total of 4 minutes 36 seconds.
I intend to appeal.  I have looked through the sticky and drafted the following for the first appeal to OPS.  I removed mention of a machine (no machines) and also the bit about the signage and car photos as they have already given me them.
Is this ok as an initial appeal sentence?
I have also included some redacted photos and a redacted copy of the PCN notice.

"I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.
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 an explanation of the allegation and your evidence.

As the contravention period is for a total time of 4 minutes 36 seconds your evidence must include the actual grace period agreed by the landowner"

Coupon-mad

This look fine, you are entitled to have a minimum of 5 minutes to read the signs and leave:

"I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.
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 an explanation of the allegation and your evidence.
As the contravention period is for a total time of 4 minutes 36 seconds your evidence must include the actual grace period agreed by the landowner"

At POPLA stage you will need to write about the grace periods in the BPA CoP and go into more detail.  Plus use the template POPLA points in post #3 of the NEWBIESA thread.

paul9619

Thanks Coupon-Mad appreciated 😁

Fruitcake

I would leave the parts about signage and photos in there. You have no idea if they have sent all the photos they havell, and you want to see if they send images of signs that don't tally with what is actually there.

paul9619

Oh well.  You win some and you lose some.  Scamming gits even getting support of POPLA now.  Beggars belief.

Decision

Unsuccessful

Assessor Name

Richard Beaden

Assessor summary of operator case

The operator has issued a Parking Charge Notice (PCN) as the vehicle was not pre-authorised for a permit.

Assessor summary of your case

The appellant dispute that a valid contract was formed. They explain that the operator has not allowed the required grace periods. They dispute that the signage at the site is prominent clear and legible. They dispute that the operator has a valid contract with the landowner. In their comments the appellant advises that they dropped someone off while they looked for a space. They explain that they then contacted the passenger to advise that they would need to find alternative parking and were on site for less than four minutes and 36 seconds. They also question the clarity of the entrance sign. They advise that the driver stopped to read the signage, adjusted their sat nav and left so were not making use of the site.

Assessor supporting rational for decision

When assessing an appeal POPLA considers if the operator has issued the Parking Charge Notice (PCN) correctly and if the driver has complied with the terms and conditions for the use of the car park. As the driver of the vehicle has not been identified, I must ensure that the operator has complied with the strict requirements of the Protection of Freedoms Act (PoFA) 2012. PoFA 2012 is used to transfer liability for the PCN from the driver of the vehicle, to the keeper of the vehicle when the driver has not been identified. I must consider if the notice meets the requirements of PoFA 2012 (Schedule 4, Paragraph 9(2)), I am satisfied that the Notice to Keeper that was sent on 25 February 2021 meets the requirements and was sent within the “relevant period”, as outlined within the act. As such, liability for the PCN is with the registered keeper of the vehicle, which in this case is the appellant. The operator has provided photographs of the signage, which it has installed around the car park. These signs show the following terms and conditions: “Parking is permitted for: • Pre-authorised vehicles (OPS E-Permit) parked fully within the confines of a marked bay… You agree to pay a ‘Parking Charge Notice’ (PCN) in the sum of £100.00”. The operator has issued a Parking Charge Notice (PCN) as the vehicle was not pre-authorised for a permit. The Automatic Number Plate Recognition (ANPR) images the operator has provided show that the vehicle entered the car park on 20 February 2021 at 10:20:56 and left at 10:25:32. A total stay of four minutes and 36 seconds. The operator has also provided a copy of a system printout, which shows if the vehicle was registered at that car park on the day in question. The printout shows that the vehicle was not registered with a permit. The appellant dispute that a valid contract was formed. Under contract law a driver must be allowed the opportunity to read and comply with the terms and conditions. Contract law stipulates that a contact has been accept if a third part would believe that by their actions the driver had accepted the contract. In this case the driver both dropped someone off and has admitted using the site to adjust their satnav as such it is clear that they had accepted the terms of the parking contract and were therefore bound by its terms. They explain that the operator has not allowed the required grace periods. The driver is permitted a consideration period to decide if they are going to park but this period ends as soon as the contract is accepted. In this case I am satisfied that the contract was accepted and the driver parked without a permit. This means that it does not matter how long the driver is parked as the driver did not leave the site and instead made us of it for the reasons explained above. They dispute that the signage at the site is prominent clear and legible. Section 19 of the British Parking Association Code of Practice sets out the requirements for signage with additional requirements being set out in appendix B. The operator has provided photographic evidence showing the signage at the site. I can see from this signage that there is a clear entrance sign in the required format. The signage is of a size where I consider at the speed the driver should have been approaching at it would have been visible. Section 19.3 requires signage to be clear prominent and throughout the site, the operator has provided a site map showing that there was sufficient signage throughout the site to bring the terms and conditions to the attention of the driver. I am also satisfied that the signs are of the size required by Section 19.3. I feel it important to explain that the driver does not need to read the terms and conditions to be bound by them there is only the requirement that the driver is afforded the opportunity to read the terms and conditions. The appellant has told us in their response that they consider the charge is unfair contrary to the Unfair Terms in Consumer Contract Regulations. The fairness of parking charges was considered more broadly by the Supreme Court in the case of ParkingEye v Beavis [2015] UKSC 67. To conclude on whether the charge is fair, I must first look at what the Court said. The Court recognised that parking charges have all the characteristics of a penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss… deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.” (paragraph 99) The Court did however make it clear that the parking charge must be proportionate: “None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.” (paragraph 100) It concluded that a charge in the region of £85 was proportionate, and it attached importance to the fact that the charge was prominently displayed in large lettering on the signage. The Court made it clear that the same considerations that means it was not a penalty also mean it is not unfair: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations.” (paragraph 104) With that in mind, to conclude whether it is unfair according to the Unfair Terms in Consumer Contract Regulations, I have to take into account the charge amount in the appellant’s case, as well as the signage. On this, I conclude the charge is appropriately prominent and in the region of £85 and is therefore not unfair. They dispute that the operator has a valid contract with the landowner. The operator has provided a copy of a land registry document and a redacted copy of the contract it holds with the landowner. The appellant has not provided any evidence which demonstrates that the operator does not hold a valid contract for managing the site. I am therefore satisfied that the operator holds a valid contract for the management of the site. In their comments the appellant advises that they dropped someone off while they looked for a space. They explain that they then contacted the passenger to advise that they would need to find alternative parking and were on site for less than four minutes and 36 seconds. They also question the clarity of the entrance sign. They advise that the driver stopped to read the signage, adjusted their sat nav and left so were not making use of the site. I am satisfied that I have already addressed each of these points within my assessment. Having reviewed the case I am satisfied that the driver made use of the site while not being registered for a permit, breaching the terms and conditions for the use of the site. POPLA’s role is to assess if the operator has issued the PCN in accordance with the conditions of the contract. As the terms and conditions of the car park have not been met, I conclude that the operator has issued the PCN correctly, the appeal is refused.

Redx

So down to plan D , court , within 6 years

Unless you can get plan A to work

Umkomaas

Let a Judge sort this out. Then when you get a favourable result, you push a copy of that in front of the POPLA assessor. 

ParkerstNick

Isn't this a 'forbidding' sign to non-permit holders? No parking contract possible?

paul9619

These are the signs. 

Its actually quite laughable.  So apparently realising you cannot park and then adding another car park into your satnav constitutes accepting the parking terms and forms a contract! What planet are these POPLA assessors on?

Apparently I should have clearly seen the signage too and it fully complies with BPA and is visible while driving.   Again what planet are these POPLA assessors on? I am beginning to think they have shares in these scam companies.    He also completely fails to acknowledge my point that there is a pedestrian crossing a bit further down from the entrance.  So lets encourage drivers to be concentrating on non-hazard parking signs instead of the imminent danger of a zebra crossing.

I can't even read those signs zoomed in on a close up !!!!!!!

Every single part of me is saying take it to court but I am really not sure if I can be bothered with the barrage of Debt collectors notes and I may also be moving within the next 2 years so sods law says I'll miss the summons.

Coupon-mad

In this case the driver both dropped someone off and has admitted using the site to adjust their satnav as such it is clear that they had accepted the terms of the parking contract and were therefore bound by its terms.

POPLA are utterly in the pockets of the BPA firms now, it seems. Also, if that's your car facing away from the camera then you were not even within the marked car park site anyway.   Luckily, a Judge won't agree with the above drivel. 

Even more luckily, POPLA's days are numbered and so will the more rogue parking firms if they don't sort themselves out:

https://www.gov.uk/government/consultations/parking-code-enforcement-framework/outcome/parking-code-enforcement-framework-consultation-response

Change is coming.

paul9619

Coupon-mad said:

In this case the driver both dropped someone off and has admitted using the site to adjust their satnav as such it is clear that they had accepted the terms of the parking contract and were therefore bound by its terms.

POPLA are utterly in the pockets of the BPA firms now, it seems. Also, if that's your car facing away from the camera then you were not even within the marked car park site anyway.   Luckily, a Judge won't agree with the above drivel. 

Even more luckily, POPLA's days are numbered and so will the more rogue parking firms if they don't sort themselves out:

https://www.gov.uk/government/consultations/parking-code-enforcement-framework/outcome/parking-code-enforcement-framework-consultation-response

Change is coming.

Yes that’s my car. They don’t seem to care that I wasn’t in a bay 🤷🏼‍♂️

That’s reassuring to know. Hopefully it will provide an element of impartiality and regulation and send a damaging blow to these reprobates. I am seething at the POPLA assessor, total disregard of what was put in front of him and he definitely had a pre conception as to what actually happened.