POPLA UNSUCCESSFUL - PAYING UP - NOT WORTH THE TORTURE

Disabledrights

Good Morning All,

I received a PCN from PPS (lONDON) Ltd - appealed and was rejected  by operator - I then appealed to POPLA who have now sent the operators response for me to comment on - please see below my INITIAL APPEAL TO POLA - Further below is the OPERATORS RESPONSE,

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Dear POPLA Adjudicator,

I received Parking Charge Notice xxxxx from Private Parking Solutions (London) Ltd on 1st March 2022.  I appealed to Private Parking Solutions London Ltd who responded on xxxxx .  I have been issued with POPLA Code xxxxx to appeal.  

I am writing to you to lodge a formal appeal against a parking charge notice (PCN) sent to myself as registered keeper of the vehicle in question.  I have enumerated all my points below on which I wish to refute these charges. 

As the registered keeper I wish to refute these charges on the following grounds:

1) Insufficient evidence provided by the Operator to issue Parking Charge Notice. Private Parking Solutions (London) Ltd (the operator), lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass

2) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

3)  Parking Charge Notice has been made out for Zone A + B, Holloway Street, Hounslow, TW3.  The vehicle is question has been photographed at Matisse Road, TW3, this is an adopted carriageway. 

4)  Evidence provided in terms of timing on the imagery captured by CCTV  (showing the vehicle at the location of the incident does not match the timing stated on the Parking Charge Notice

I have elaborated on each one of my points below.   

1) Insufficient evidence provided by the Operator to issue PCN. Private Parking Solutions (London) Ltd, lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass

The PCN states that We have issued Parking Charge Notice (PCN) to your vehicle because it was parked in a manner whereby the driver became liable for a PCN at ZONE A+B Holloway Street, Hounslow, TW3.  

Firstly, No map indicating Zone A and B is provided anywhere in the vicinity. Without a map showing where zones A and B actually are the driver cannot make an informed decision where to park, let alone breach terms and conditions of a 'No Parking Area'. The parking bays are clearly not part of any managed car park or parking site.  The operator has claimed that the vehicle was parked in an enforcement zone in an area where parking is forbidden at anytime but has failed to provide any evidence to back up this claim. Furthermore, if the area is a 'No Parking at anytime area' then the demarcation of parking bays, defeats that purpose.  It is very clear that the operator has failed to make it abundantly clear that the parking bay is a no parking area. 

The operator has sent a version of the sign affixed to the wall.  The actual signage is clearly not visible from the edge of the pavement, whilst standing up (please see pic attached below), let alone being sat in a vehicle. 

2) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

The BPA Code of Practice clearly states as follows: 18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.

Bearing this paragraph in mind, there was categorically no contract established between the driver and Private Parking Solutions (London) Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. From the picture above, it is apparent that the signs in the car park are illegible from the pavement/parking bay. As a result, any driver would not have a fair opportunity to read about any of the terms and conditions involving this charge.  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 smaller print (and does not feature at all on the majority 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 - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign or parked near one.  In comparison the sign to the left appears to have a larger font and more legible.  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 operator’s 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.''

 (4a)  Parking Charge Notice has been made out for Zone A + B, Holloway Street, Hounslow, TW3.  The vehicle is question has been photographed at Matisse Road, TW3, this is an adopted carriageway. 

The photograph on the PCN depicts a car stationary on Matisse Road.  Holloway Street is approximately 100 meters away running perpendicular to Matisse Road, please see google map below (red circle depicts position of car).  In essence the PCN is inaccurate.

The initial response to my appeal references the scheme rules outlined by the Department for Transport in its guidance titled "Blue Badge Holders: Rights and responsibilities in England and Wales".  The response stated, Blue badge holders should not assume that they can park for free in private off-street car parks.Matisse Road is an adopted carriageway, please see hounslow highways register drawing showing the same below;

The highways register drawing above, clearly show's that Matisse Road is an adopted carriageway and that the lack of clear signage to the contrary or of controls does not indicate otherwise.  Furthermore the close up of the vehicle shows clearly a blue badge displayed.

Keeping in view all the evidence presented above, I look forward to your ruling in my favour, thank you.

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OPERATORS RESPONSE BELOW

Private Parking Solution (London) - EW

Operator Case Summary

Dear Assessor, The car park, where the appellant's vehicle was parked at the time of the contravention, belongs to a private landowner with a business address Holloway Street, Hounslow, TW3 1AA. The agreement we have with the landowner confirms our position to conduct parking management for Zone A + B, Holloway Street in Hounslow. The sitemap confirming our jurisdiction, which is highlighted in red, shows its area. The site map clearly shows that we control the area where the appellant parked. This is also demonstrated by the signs in sight of the appellant’s vehicle adequately informing that this was private land. The appellant states that the vehicle in question has been photographed at Matisse Road, TW3, however, it is evident that the appellant did not park on the road, but on the land we manage. Therefore, by parking on this particular piece of land, the driver became subject to the parking restrictions stipulated on the signage. The signage at the location in question is clearly located to make motorists aware of the terms and conditions and the potential consequences of non-adherence to the terms have been made fully available: No parking at any time. Private land, strictly no parking, waiting or loading at any time, unauthorised parking will result in the issue of a £100 parking charge notice. Do not park here unless you agree to the terms and conditions displayed. The charge was issued because the appellant's vehicle was parked in enforcement zone in strictly no parking at any time area, which is a direct contravention of the advertised on the signage terms and conditions of parking. The warden has identified a breach of the displayed terms and photographed the vehicle as evidence for the images on the PCN. The onsite images show that the appellant's vehicle remained stationary for at least 8 minutes next to a warning sign, indicating in large bold letters that parking was not permitted and further stating that there is no waiting at any time in the area. As such, the appellant derived utility from this stay and therefore a consideration period of 5 minutes does not apply. As no parking is allowed on this site, a grace period of 10 minutes to leave the car park does not apply as vehicles should not be there. It is evident that the appellant was made aware of the applicable terms, and therefore, if the appellant decides to remain on site and does not review the full terms and conditions of parking, the operator cannot be held responsible for a breach of the parking contract. By parking at the site, the appellant became subject to the terms and conditions, which apply to all motorists that use the site. By parking in a strictly no parking at any time area, they have breached the applicable terms and have accepted the potential consequence of incurring a PCN. It is important to note that when issuing a Notice to Keeper, the operator must obtain the details of the registered keeper from the DVLA and then, issue the notice to keeper accordingly. As such, the date of issue of the notice to keeper does not coincide with the date of the parking event. Ultimately, it is the responsibility of the motorist to ensure they seek out and adhere to the terms and conditions of the site in order to avoid the possibility of a PCN being issued.

Fruitcake

If the PPC has failed to address any of your points, then say that the operator must concede that point and that the assessor must allow the appeal.

The PCN must state the relevant land where the alleged event occurred. If the address on the PCN is that of the landowner, not the actual relevant land itself, then that is a PoFA failure. 
The PCN must state the location where the alleged event occurred. It has not: it has in fact stated a completely different location, therefore it was incorrectly issued and the appeal must be allowed.

The signs are forbidding in nature. It is trite law that a motorist cannot form a contract by doing something that is forbidden. For a contract to be formed there must be three elements: offer, consideration, and acceptance. The signs make no offer to park, there is no consideration offered, therefore there can be no acceptance, therefore no contract can be formed.

Remember, you have only 2000 characters to rebut, so your points need to be short, sharp, and relevant.

Did the signs specifically state that there were no concessions for disabled motorists?

Disabledrights

Fruitcake, you are a star!, thank you, I will start drafting now

Fruitcake

You only have six days to submit your rebuttal, so don't miss the deadline, but do post your draft here if you have time before the deadline.

Le_Kirk

........... and note that you only have 2,000 characters NOT words.

Disabledrights

Hi Fruitcake, 

"Did the signs specifically state that there were no concessions for disabled motorists?" Absolutely Not (great point) !

Please see my draft appeal below -ANY HELP/SUGGESTIONS will be very welcome! 
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The operator has failed to address two points, they must concede these points.

 No map indicating Zone A and B is provided anywhere in the vicinity. Without a map showing where zones A and B actually are the driver cannot make an informed decision where to park, let alone breach terms and conditions. 

The highways register drawing clearly show's that Matisse Road is an adopted carriageway and that the lack of clear signage to the contrary or of controls does not indicate otherwise

The Operator in their response state, " .... it is evident that the appellant did not park on the road, but on the land we manage".  They clearly have identified that the vehicle was parked on Matisse Road, in one of the parking bays, which they refer to as 'private land'. I have clearly shown by the drawing of the Highways register that Matisse Road is an adopted carriageway and that the lack of clear signage to the contrary or of controls does not indicate otherwise.

The operator has sent a close up shot of  sign affixed to the wall.  The actual signage is clearly not visible from the edge of  the pavement.  Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver.  Furthermore, Department of Transports, Private Parking Code of Practice  4.2..... It is particularly important that parking operators make clear to drivers where the rights available to Blue Badge holders on public roads do not apply e.g. ..prominent, readily visible (i.e. low-placed) signs (including repeater signs) indicating clearly that within this land Blue Badge holders are not permitted to stop or park.. .

The signs are forbidding in nature. A motorist cannot form a contract by doing something that is forbidden. For a contract to be formed there must be three elements: offer, consideration, and acceptance. The signs make no offer to park, there is no consideration offered, therefore there can be no acceptance, therefore no contract can be formed.

(character count 1984) 

Fruitcake

You haven't mentioned that the PoFA requires the PCN to state the relevant land where the alleged event occurred. It does not: it states that the alleged event occurred on a public highway/adopted road.

Disabledrights

Thanks Fruitcake.

Draft Appeal, with your suggestions added below, please let me know if it makes sense.  Any suggestions/improvements/feedback are very welcome.  Thankyou Fruitcake for your guidance, it is very much appreciated.

Draft Appeal (character count 1999)
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The operator has failed to address 2 points (below), they must concede these.

1. No map indicating Zone A and B is provided anywhere in the vicinity. Without this a driver cannot make an informed decision where to park thus cannot breach terms and conditions. 

2. Highways register drawing clearly show's that Matisse Road is an adopted carriageway and that the lack of clear signage to the contrary or of controls does not indicate otherwise

The Operators response states,".. it is evident that the appellant did not park on the road, but on the land we manage". They clearly have identified that the vehicle was parked on Matisse Road, in one of the parking bays, which they refer to as 'private land'. The Highways register drawing shows that Matisse Road is an adopted carriageway and that the lack of clear signage to the contrary or of controls does not indicate otherwise.  Furthermore, Schedule 4 of the POFA para 9(2), requires the relevant land on which the vehicle was parked to be specified, it clearly has not.   

The actual signage is clearly not visible from the edge of the pavement.  They have submitted a close up shot. Signage does not comply with the BPA Code of Practice and is not prominent enough to form any contract with a driver.  Department of Transports, Private Parking Code of Practice 4.2 states, It is particularly important that parking operators make clear to drivers where the rights available to Blue Badge holders on public roads do not apply e.g. prominent, readily visible (i.e. low-placed) signs (including repeater signs) indicating clearly that within this land Blue Badge holders are not permitted to stop or park.

The signs are forbidding in nature. A motorist cannot form a contract by doing something that is forbidden. For a contract to be formed there must be three elements: offer, consideration, and acceptance. The signs make no offer to park, there is no consideration offered, therefore there can be no acceptance, therefore no contract can be formed.

Coupon-mad

It is not a Draft Appeal. You've done the appeal already. It's your POPLA Comments on the evidence.

Disabledrights

Yes, Sorry Coupon -mad, what do you think of my POPLA comments on the evidence? 

Coupon-mad

Yes.  All good except "Department of Transports, Private Parking Code of Practice".

It's not the DoT.  It's the DLUHC.