POPLA Appeal Unsuccessful

LittleAlien

Hello All-I have been unsuccessful in my appeal against Initial Parking. Do I have any other means of recourse?

I have copied my defense and POPLA's response below for context. Apologies, it's a bit of a long read!

My Defense:

Dear POPLA,

Thank you for the opportunity to provide a response to the evidence provided by Initial. It is appreciated.

I note that, on this second occasion that Initial have again failed to respond to the evidence I provided, namely that the ticket machines were not working and it was not possible to download the Flowbird app due to poor internet connectivity attributable to the rural nature of the location.

What Initial have provided simply demonstrates the following:

• There is large signage.
• There are instructions on how to follow the payment process on their machines.
• People (who presumably were local and had the app already on their phone) were able to pay.

I do not refute these points. All the signage and instructions in the world however, are useless if the means to pay is not provided.

I wish to make the point here that I am not some scurrilous rogue who gets kicks out of parking for free. I intend and expect to pay when I enter a car park. To check my usual behaviour when not in an atypical situation, please check your records for Grasmere car park. I parked there shortly after leaving White Moss that day. The machines were working in Grasmere, hurray! (they actually took cash) and I paid!

By the way, the reason we had to park in Grasmere was because we had failed to meet with my Mum (it was her 70th birthday celebration) at White Moss. We'd headed off to Rydale water to try and find her, but didn't find her because she wasn't able to use the machines at White Moss car park either, and so headed into town. Her phone is older than mine and isn't able to download apps at-all! Heaven forbid if some actually didn't take their phone out on a walk with them. What would happen then?

So there you have it: A fella and his Wife and Brother trying to meet their Mam for a birthday walk. Having not been given the facility to pay, we now realise that we'd merely fallen into a trap. In terms of contractual obligation which legally requires not just offer and acceptance, but also competency and capacity, I'd be interested in how this plays if I need to take it further (and if I have to, I will). Do Initial dispute that BOTH their ticket machines were out of order? I shouldn't think so.

I'd also add that the charge doesn't look to me like a genuine pre-estimate of loss. The charge is £100 or £60 if I pay sooner, which sounds like a bribe to me. Perhaps ask Initial to show you how this figure was calculated as per The British Parking Association Code of Practice which uses the word ‘MUST’: “19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.”  I think, should it come to court, that Initial may struggle to demonstrate that they were damaged by an amount that is in excess of what most folk earn in a day.

Last point: If I'm understanding Initial's evidence correctly, it seems to be implying that it is okay to offer a service whilst not offering a means for non-locals who do not have the app, to pay. Furthermore, when those tourists, holiday-makers, providers of revenue to all fully-functional car parks -find themselves unable to pay, Initial's evidence seems to suggest that it is okay to charge these people vastly more than the original charge as a a penalty, rather than offering them the opportunity to pay the amount they owed (I'd be happy to) and would have paid in the first instance had they but found a means to do so. If that is what Initial is saying, then I suggest it to be a most dishonourable way of doing business.

Thanks again for letting me explain my situation.

POPLA'S Response

Unsuccessful

Assessor Name

Stuart Lumsden

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) due to unpaid tariff time.

Assessor summary of your case

The appellant’s case is that they were on Holiday and travelled to the site to park. They state that neither of the payment machines were working on site and the only other payment method was via the app. The appellant states they had very little internet connection and could not download this to pay. They state that many other families faced the same issue and it is unfair to issue a PCN when the operator has not provided a means to pay. The appellant has provided evidence to support the appeal.

Assessor supporting rational for decision

The appellant has identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the driver. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The operator has provided photographic evidence of the signage in place in the car park, which states: “Parking tariff applies 24 hours a day Monday – Sunday. £2.00 per hour…Failure to comply with the Terms & Conditions may result in a Parking Charge of: £100”. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 14:27, and exiting at 16:34, totalling a stay of 2 hours 6 minutes. The operator has provided evidence to demonstrate that the appellant did not pay to park. The appellant explains that they were on Holiday and travelled to the site to park. They state that neither of the payment machines were working on site and the only other payment method was via the app. The appellant states they had very little internet connection and could not download this to pay. They state that many other families faced the same issue and it is unfair to issue a PCN when the operator has not provided a means to pay. I acknowledge the appellants grounds of appeal and evidence provided to demonstrate that the payment machine was out of service. I understand that the appellant had made a long trip to the site and found the machines out of order and had no internet connection to download the app. I have reviewed the operators evidence pack and it has provided images of signage throughout the site which makes it clear that all motorists must pay to park on site. The operator has also provided a list of other motorists that paid to park on the day of the breach, although I fully acknowledge that this was via the Flowbird app and not via the machine. There is no dispute that there were issues with the payment machines and the operator has confirmed that all payments made were via the app, but this does not allow motorists to park for free if they cannot pay. All motorists must pay to park, if they cannot pay due to an issue with the operator or not, then they must leave site and park elsewhere unfortunately. I accept that it is the operators responsibility to maintain their equipment on site and provide a means of payment, which they did, but this could not be utilised due to the internet connectivity, but none of the above allows motorists to park for free. I fully acknowledge that other motorists faced the same issues and I do not dispute that internet connection in the area would be spotty at best, but it does not negate the need to comply with the terms and conditions. I fully sympathise with the appellant and accept that the payment machines were faulty, but they still chose to remain on site knowing that they had to pay to park, as they could not pay to park, they should have left the site. POPLA’s remit is to assess the validity of the PCN, as the appellant remained on site for over 2 hours and did not pay to do so, I must conclude that the PCN was issued accordingly. The appellant states that the charge is unfair. The legality of parking charges was considered in a high profile court case, Parking Eye v Beavis. This case was ultimately decided by the Supreme Court which concluded that: “… the £85 charge is not a penalty. Both Parking Eye 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 Parking Eye 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.” The charge in this instance, while it may not be a genuine pre-estimate of loss, is in the region of the £85 charge decided upon by the Supreme Court, is neither extravagant nor unconscionable and is therefore reasonable. I note the further comments made by the appellant after they reviewed the evidence pack and believe their concerns have been addressed in my decision. I have reviewed the operators evidence pack and it has provided images of the appellants vehicle entering and exiting the site. It has provided images of the signage on site which are clear, legible and evenly spread, this sets out the terms of parking and the PCN amount if the terms are not met. I acknowledge the appellant’s comments, however when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant did not comply with the terms and conditions by failing to pay for parking. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

DontWorryBeHappy27

Find out if you can who owns the land and ask them to get the Parking Charge Notice (if Initial do not own the land) and get it cancelled.Read the newbies thread and sit back and wait and see if they try to go to enforce this Invoice via the Courts. Long standing posters know much more than me on the various Private Parking Companies and their likelihood of taking this route. They have 6 years in which to do this. Currently there is effectively a limit to the costs of about £200 if believe. Complain to your MP too. Well defended cases I understand win 99 percent of the time at Court. Ignore any debt collection letters and do not respond. Act quickly and respond to the Government consultation on parking charges due to end soon maybe 21st August 2021, I 'll check this and amend.

Read the thread on this Government consultation too. 

LittleAlien

Really helpful. Thank you Don'tWorryBeHappy. I'll contact Lowther, who own the land-and see what happens from there. Appreciated! :-)

Fruitcake

I know that's how you received the PoPLA decision, but please post it again with paragraphs otherwise it is unreadable.

You were never going to win with no genuine pre-estimate of loss. That went out the window six years ago with the infamous Supreme Court Beavis case.

If it gets to court then frustration of contract, not the landowner, inadequate signage, no standing to issue charges, and any BPA failures will be the points to raise. 

Non PoFA compliance might have been an option if the NTK was not capable of holding the keeper liable, but that is out the window because the driver's identity has been revealed.

Landowner cancellations are always the best option; Plan A as we call it, so concentrate on that for the time being.

Come back to this thread and the NEWBIES if you do get a court claim, but please ignore powerless debt collectors. A PoPLA decision is not binding on the motorist.

Please also respond to the government consultation on parking charge levels, especially as the PPCs are trying to get an extra £70 in fake debt collection fees in through the back door.


Government Consultation re private parking charge levels, August 2021: PLEASE BOOKMARK THIS THREAD — MoneySavingExpert Forum

LittleAlien

Assessor summary of your case

The appellant’s case is that they were on Holiday and travelled to the site to park. They state that neither of the payment machines were working on site and the only other payment method was via the app. The appellant states they had very little internet connection and could not download this to pay. They state that many other families faced the same issue and it is unfair to issue a PCN when the operator has not provided a means to pay. The appellant has provided evidence to support the appeal.

Assessor supporting rational for decision

The appellant has identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the driver. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period.

The signage in place sets out the terms and conditions of this contract. The operator has provided photographic evidence of the signage in place in the car park, which states: “Parking tariff applies 24 hours a day Monday – Sunday. £2.00 per hour…Failure to comply with the Terms & Conditions may result in a Parking Charge of: £100”. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 14:27, and exiting at 16:34, totalling a stay of 2 hours 6 minutes. The operator has provided evidence to demonstrate that the appellant did not pay to park.

The appellant explains that they were on Holiday and travelled to the site to park. They state that neither of the payment machines were working on site and the only other payment method was via the app. The appellant states they had very little internet connection and could not download this to pay. They state that many other families faced the same issue and it is unfair to issue a PCN when the operator has not provided a means to pay. I acknowledge the appellants grounds of appeal and evidence provided to demonstrate that the payment machine was out of service. I understand that the appellant had made a long trip to the site and found the machines out of order and had no internet connection to download the app.

I have reviewed the operators evidence pack and it has provided images of signage throughout the site which makes it clear that all motorists must pay to park on site. The operator has also provided a list of other motorists that paid to park on the day of the breach, although I fully acknowledge that this was via the Flowbird app and not via the machine. There is no dispute that there were issues with the payment machines and the operator has confirmed that all payments made were via the app, but this does not allow motorists to park for free if they cannot pay. All motorists must pay to park, if they cannot pay due to an issue with the operator or not, then they must leave site and park elsewhere unfortunately. I

accept that it is the operators responsibility to maintain their equipment on site and provide a means of payment, which they did, but this could not be utilised due to the internet connectivity, but none of the above allows motorists to park for free. I fully acknowledge that other motorists faced the same issues and I do not dispute that internet connection in the area would be spotty at best, but it does not negate the need to comply with the terms and conditions.

I fully sympathise with the appellant and accept that the payment machines were faulty, but they still chose to remain on site knowing that they had to pay to park, as they could not pay to park, they should have left the site. POPLA’s remit is to assess the validity of the PCN, as the appellant remained on site for over 2 hours and did not pay to do so, I must conclude that the PCN was issued accordingly.

The appellant states that the charge is unfair. The legality of parking charges was considered in a high profile court case, Parking Eye v Beavis. This case was ultimately decided by the Supreme Court which concluded that: “… the £85 charge is not a penalty. Both Parking Eye 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 Parking Eye 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.”

The charge in this instance, while it may not be a genuine pre-estimate of loss, is in the region of the £85 charge decided upon by the Supreme Court, is neither extravagant nor unconscionable and is therefore reasonable. I note the further comments made by the appellant after they reviewed the evidence pack and believe their concerns have been addressed in my decision. I have reviewed the operators evidence pack and it has provided images of the appellants vehicle entering and exiting the site. It has provided images of the signage on site which are clear, legible and evenly spread, this sets out the terms of parking and the PCN amount if the terms are not met.

I acknowledge the appellant’s comments, however when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park.

Upon consideration of the evidence, the appellant did not comply with the terms and conditions by failing to pay for parking. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

LittleAlien

I've reposted the response. Lowther aren't famous for getting back to people (I completed a contact form however, just in case) so will have to wait and see if they enforce.

Thanks

Redx

Been a couple of Initial Parking and Lowther Estates cases on here recently ( Lake District )

Court is where it may be resolved , within 6 years , there is no intermediate stage !

D_P_Dance

Popla is fixed, many judges are aware of it.  Have you complained to your MP?

LittleAlien

Yes, thank you D_P_Dance, just done that- and emailed Lowther estates, Ambleside Parish Council, and Initial Parking to say I consider their actions to be theft. I'm also reporting them to the Government (compliance and Targeting) as based on the following reviews, their behaviour sounds like a scam: https://uk.trustpilot.com/review/www.initialparking.co.uk

Fruitcake

UK MPs across all parties referred to unregulated parking companies as scammers, rogues, and bloodsuckers.

Please do contribute to the government consultation on parking charge levels.

Umkomaas

The charge in this instance, while it may not be a genuine pre-estimate of loss, is in the region of the £85 charge decided upon by the Supreme Court, is neither extravagant nor unconscionable and is therefore reasonable.  

I just hate this outrageous presumption by POPLA. How dare they inflate the level of charge determined by TSC as not being extravagant or unconscionable, the court determined £85, not £100. 

On the same basis, do they presume that a 15 minute overstay is in the region of a 2 hour limit?  No they don't!  Battery hens with no capacity to even remotely intellectualise this stuff - they simply press a GPEOL button on their computer to deliver a set form of words from their standard bank of block paragraphs to support the PPC.