Wells-Next-The-Sea Quay - Civil Enforcement

WaterBourne

Thanks to both. Appeal has now been submitted as a .pdf. 

That POPLA appeal system leaves a lot to be desired. 

WaterBourne

So I've received CELs pack, which conveniently omits the pictures that will incriminate them. Should I post them?

Coupon-mad

Yes you can show us.

WaterBourne

Apologies for delay. 

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.”

8. 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 Parking Eye v Beavis has been included in the Operator’s evidence pack, but can also be accessed using the following link: https://www.supremecourt.uk/cases/docs/uksc-2013-0280-press-summary.pdf

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. Notice was issued as the Driver failed to purchase parking for vehicle, registration.

13. 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 13:19 and departing at 13:58 (total duration of 39 minutes).

14. Signage in the car park clearly states "PHONE AND PAY OR PAY AT MACHINE – PAYMENT MUST BE MADE WITHIN 15 MINUTES OF ARRIVAL ON THE PREMISES – IF YOU BREACH ANY OF THESE TERMS YOU WILL BE CHARGED £100."

15. The Appellant failed to purchase parking for vehicle registration, as can be seen from the attached report which shows the vehicles that did purchase a parking session on the day in question. The reports also demonstrate that other drivers were complying with the terms and conditions, and that the Phone and Pay service and the payment mac

WaterBourne

Sorry, pictures were as posted earlier and there is also the press summary from the Beavis case. 

Coupon-mad

This is all about evidence, so point out the holes in their case (use bullet points, as there's a very limited word count for comments).  E.g 

- if your POPLA appeal alleged 'no landowner authority' have they addressed that with a copy of the agreement?

- if your POPLA appeal said that this was a double visit, you should point out to POPLA that the operator has failed to address that point by showing they searched all ANPR images during that period, for the missing 'orphan images' of the middle 'out' and 'return entry'.  They have this info so the burden lies with them to prove they've discounted a 'double dip' as alleged by you.

- if the signs were not clear, are there any issues with their evidence?  Are the photos of signs old or undated?  Is the £100 hidden in small print?

- if you can fit in an extra point, tell POPLA to disregard their point 4 because they are selectively quoting from the LOSING respondent's case in Vine v Waltham Forest, where Miss Vine in fact won, because the signs were not prominent enough.  So this is crap:

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”.

WaterBourne

Thanks will get onto it this evening. 

FrankCannon

There are plenty of threads about Wells-Next-The-Sea on the forum, but here's one that may be of interest to you ;

https://forums.moneysavingexpert.com/discussion/comment/78279420/#Comment_78279420

And here's a link to another thread with a defence point about PoFA 2012 and relevant land ;

https://forums.moneysavingexpert.com/discussion/comment/78228009/#Comment_78228009

WaterBourne

1. This is the "landowner authority" which, as the land is controlled by byelaws cannot be a true document.  

https://i.ibb.co/GHLnypn/Simon-Cooper.jpg

paragraph 3 (1) c of the 2012 Protection of Freedom Act - (c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control. The car park is governed by "Wells Harbour Revision Order from 1994" that indicates the harbour land is under statutory control. “the harbour estate” means the docks, piers, wharves, quays, berths, roads, bridges, sheds and other works and conveniences and the lands, buildings and property, of every description and of whatever nature, which are for the time being vested in or occupied by the Commissioners for the purposes of the harbour; “

Paragraph 4 of CELs pack is actually laughable as the defendant won the case as the signs were not clear enough. This is CEL cherry picking. Therefore their para 4 should be ignored. 

5. The land is covered by byelaws so cannot be private land. 

6. The appellant may or may not have been there. The DRIVER has not been named. 

8. Once again how can the onus be on the appellant? CEL notices are not POFA compliant, I believe they mean the driver. 

12. The notice was issued to the keeper, the driver has not been named and, as such, has never received anything. 

14. CEL need to read the rules on signage, the £100 is buried in a small font. This sign is not compliant with BPA signage

15. The Appellant failed to purchase parking for vehicle registration VO17KNP – I believe CEL mean the DRIVER not the Appellant and as they do not rely on keeper liability the DRIVER will not be named.

16. There are no mitigating circumstances. Companies like CEL should NOT rely on templates. 

Coupon-mad

What about Fairlie v Fenton: disclosed principal?

And the fact that the signs don't make a contractual offer.  As discussed on other Wells threads.

And that so called authority is unsigned, isn't it?