Appeal rejected

Affywaffy

Hi. I made an appeal to POPLA for a parking charge notice which I believe to have been unfairly issued. I don’t remember seeing any signage to say the car park is now a pay&display. The last time I had visited was in August 2021. And my most recent visit was March 2022. Had I known o would have paid for parking which is £1.80. The parking charge notice is a charge for £100. My appeal has been rejected as the parking company have provided a contract between the landlord and themselves from January and photographs of the car park dating to Feb 2022. My argument regarding the disproportionate charge has also been denied and the assessor has stated £85 or in the region of is proportionate. Can you please advise what I can do with this now? Do I have to pay this charge or can I take other action? 

Below is the response from POPLA.

Decision

Unsuccessful

Assessor Name

Natalie Matthews

Assessor summary of operator case

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

Assessor summary of your case

The appellant’s case is that there was no signage on the date in question. There was no relevant parking terms and conditions anywhere which means a parking contract can’t be formed with the landowner and all tickets are issued illegally. The appellant added that there weren’t any payment machines on site and nor did any other vehicle have tickets displayed. The appellant states from conversations they had with the local business, they advised that the parking restrictions only came into force a week or two ago. The appellant calculates that this was around the 7th or 8th or March, which means this would be after the appellant's visit to the site. The appellant also added that they returned to the site and sure the signage wasn’t there as the signs are unmissable. The appellant added that their passenger could also confirm this. The appellant also feels that the charge is disproportionate and not a genuine pre-estimate of loss as well as being excessive. The appellant visited in August 2021 and there were no parking restrictions then. Had there have been signage they would have seen it and would have paid the fee as they have no issue with paying a fee. The appellant included photographic evidence of the car park and images over conversations with local businesses in relation to when the parking restrictions came into force.

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. The operator has provided photographic evidence of the signage in place in the car park, which states: “This is a pay and display car park...All car park customers must pay for parking...Parking Tariffs Apply...Up to 2 hours £1.80...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 11:01 and exiting at 13:01 staying a total of 2 hours. The operator included photographic evidence of the car park site and where signs are located on site. The operator included a data sheet confirming no parking was purchased for the vehicle registration in question. I will now examine all the information provided to me by both the appellant and the operator to determine if it makes a material difference to the validity of the PCN. The appellant’s case is that there was no signage on the date in question. There was no relevant parking terms and conditions anywhere which means a parking contract can’t be formed with the landowner and all tickets are issued illegally. The appellant added that there weren’t any payment machines on site and nor did any other vehicle have tickets displayed. The appellant states from conversations they had with the local business, they advised that the parking restrictions only came into force a week or two ago. The appellant calculates that this was around the 7th or 8th or March, which means this would be after the appellant's visit to the site. The appellant also added that they returned to the site and sure the signage wasn’t there as the signs are unmissable. The appellant added that their passenger could also confirm this. The appellant visited in August 2021 and there were no parking restrictions then. Had there have been signage they would have seen it and would have paid the fee as they have no issue with paying a fee. I fully appreciate and empathise with the appellant. The British Parking Association (BPA) Code of Practice section 19.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. I am satisfied from the evidence provided that the signage at the site meets the requirements of the BPA Code of Practice and that the driver of the vehicle had sufficient opportunity to familiarise themselves with the terms and conditions. The signage clearly states, “This is a pay and display car park...All car park customers must pay for parking...Parking Tariffs Apply...Up to 2 hours £1.80...Failure to comply with the terms & conditions may result in a Parking Charge of: £100...”. Whilst I acknowledge the appellant feels the signs were not at the site on the date in question, I can see from the operator's photographic evidence that the signage was clearly there on 2 February 2022, which is a month before the date in question. This means that the local business are correct in their comments that the parking restrictions are very new, maybe a few weeks, however the photographic evidence from the operator proves that the signage was there from 2nd February 2022. The appellant provided photographic evidence of the Sangam Sign which is stated 02/03/22, but as there is no date on the actual image to support this, I am unable to determine what date this photographic evidence was taken. Furthermore, that image is only of a small part of the car park, the appellant hasn’t included any other images of the car park without signage in support of their appeal. The appellant also feels that the charge is disproportionate and not a genuine pre-estimate of loss as well as being excessive. The appellant has told us in their response that they consider the charge does not reflect the loss to the landowner and is therefore not a genuine pre-estimate of loss. This matter was considered at length by the Supreme Court in the case of ParkingEye v Beavis [2015] UKSC 67. In this case, 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. This “legitimate interests” approach moved away from a loss-based analysis of parking charges: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The 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. While the specific facts of the case concerned a free-stay car park where the motorist had overstayed, I consider the principles that lie behind the decision remain the same. Taking these principles into account, I am not going to consider whether the loss is a genuine pre-estimate of loss or whether it reflects a correct loss to the landowner. Rather, I am going to consider 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 allowable. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park and on this occasion the appellant never paid for their parking on the date in question, they therefore did not comply with the terms and conditions. As noted within my report above, I have refused this appeal.

Umkomaas

Which parking firm?

Affywaffy

@Umkomaas Initial Parking

Affywaffy

Umkomaas said:

Which parking firm?

Initial parking

Umkomaas

Initial Parking are relatively new boys on the block (January 2019), so we don't really have that much intel on how litigious they are/might be. Therefore you're in a bit of a state of limbo waiting to see if they want to pursue this through the court system, or whether they will initially use (silly, harmless) debt collectors. 

Should a court claim arise, be aware that the vast majority of those who fully follow forum advice and guidance in defending a claim are successful. Come back if they issue a LBC or court claim via the Northampton CCBC. 

They do have six years in which to sue. 

Affywaffy

I have received an email letter today from another company following the previous debt collection letters. This is now from Guildway Recovery but signed by Lovett Solicitors. Advising to pay £170 or call to agree a payment plan. Otherwise they may start legal proceedings. What’s the advise here? @Umkomaas

KeithP

Affywaffy said:

I have received an email letter today from another company following the previous debt collection letters. This is now from Guildway Recovery but signed by Lovett Solicitors. Advising to pay £170 or call to agree a payment plan. Otherwise they may start legal proceedings. What’s the advise here?

The advice here is to read the fourth post of the NEWBIES thread where you will find all the detail about how to deal with debt collectors letters.

Please try and be precise with company names or trading styles. It is Guildways - with an 's'.
From their website...
Guildways is a registered trademark of Lovetts Ltd

patient_dream

Affywaffy said:

I have received an email letter today from another company following the previous debt collection letters. This is now from Guildway Recovery but signed by Lovett Solicitors. Advising to pay £170 or call to agree a payment plan. Otherwise they may start legal proceedings. What’s the advise here? @Umkomaas

Guildway Recovery amd Lovett Solicitors are one of the same.

Do not get sucked in and ignore and do not contact them.
Any company who deals in fakery ... that's the scam £70 add-on, is simply not worthy of wasting your time.   

If Initial Parking want to take it further, they must instruct a legal, maybe Lovell, or one of the other dodgy legals.
That results in a letter before claim giving you 30 days to respond .... not a silly debt chase up letter offering you a payment plan ?  pathetic.

If you get a letter before claim giving you 30 days to respond ... come back here.

In the meantime you ignore Messrs Guildway Recovery and Lovett 

Umkomaas

And more proof ( @Coupon-mad ) that debt collectors still 'do it for nowt' if they don't collect!

Coupon-mad

Umkomaas said:

And more proof ( @Coupon-mad ) that debt collectors still 'do it for nowt' if they don't collect!

Interesting. New greedy gits joining the gravy train.

@Affywaffy : please can you show us a photo of this letter chain as each letter arrives (your details redacted, of course).  Starting with this one you just got, as this is new and we'd like to also check that they are not misleading recipients.

Affywaffy

This is the letter I have received on email