Ocean Parking PCN & POPLA Appeal

hop_skotcher

Hi all,

I recently got a PCN from Ocean Parking Ltd, a PPC in Leicester... As part of their T&C's visitors are allowed to stay a maximum of 2 hrs unless they are patrons of the onsite retail units, namely B&M and The Gym Group, whereby patrons need to enter their car reg into tablets issued to the retailers in order to benefit from 3 hours of free parking.

On the date in question, 16th April 2022, I had parked for 2hrs and 17mins but hadn't noticed the tablet in the gym as there wasn't any signage in the venue and the tablet is positioned in a very out of sight location from the gym entrance.
I was driving my mother's car at the time and she had received the PCN.
Anyway, Ocean Parking Ltd hit her a £100 PCN... We appealed to them to which they rejected though did offer a £20 discounted charge as a "gesture of goodwill"... To be honest, we completely missed this £20 'goodwill' gesture as it was embedded into a lot of text that we just didn't see it, unlike the £100 charge which is heavily emphasised in bold lettering.

We are now currently appealing with POPLA and the operator has sent through their information pack on whilst our appealed should be rejected.
We have 7 days to provide further comments in the POPLA appeal and would really welcome some help!

I spoke to the manager at The Gym and they recommended we appeal as they knew of other customers who had problems with tablets not working.
In our original appeal, I provided my gym usage metrics so they could clearly see I was a patron of The Gym on the day in question.

In Ocean Parking's POPLA response, they have provided loads of information in their response pack including:

• Apparent records of other drivers who had used the tablet on the date in question
• Lots of pictures of the signage across the car park - though none showing where the actual car was parked
• A redacted copy of the contract they have with the land owner as their right to operate.

On the face of it and trying to absorb and make sense of all the info they've provided, I am struggling to pick flaws beyond really asking what the comprises of the £100 charge and the fact that they openly admit patrons of The Gym get up to 3 hours of free parking. I'd have thought any customer-focused company would operate on a basis of fairness. Even the £20 goodwill gesture charge seems excessive. An admin charge to cover postage and printing of the letters, I'd probably accept so maybe £5 but this just feels like they're exploiting people.

I have uploaded a redacted copy of their response here:
https://drive.google.com/file/d/19Ko0Sk-srC0DeY-iAw2VUmfBJx1wSCBq/view?usp=sharing

One Interesting thing I noticed on their response was that they make no mention of the fact that patrons of B&M and The Gym get up to 3 hours of parking if they use the tablet provided... I feel they've intentionally left this out of their information evidence pack.

Anyhow, would really appreciate any help people can offer to help forming my final POPLA response.

Thanks all.

Coupon-mad

You'll lose this appeal, unless the signage is terrible. Did you show photo evidence of the lack of signs?  It is ALL going to be about their evidence on signage.

You need to look specifically at that in their evidence and comment on the lack of signs and large text £100:

 E.g.

- no images of the supposed keypad? No evidence that it exists, then!

- keypad not prominently drawn to gym users' attention to claim the 3 hours on offer.

- other signage photos have the £100 buried in small print?  Then that's what you say in your short comments box.

If you still lose then you don't pay, obviously! Let us know here, either way.

KeithP

You will find good guidance on how to respond following the heading AFTER SUBMITTING YOUR POPLA APPEAL: in the third post of the NEWBIES thread.

Do not miss the deadline for your response.

hop_skotcher

Thanks for the pointers @KeithP and @Coupon-mad... I've drafted a copy, which I'll paste in a moment for your comments... But also having read the others, though they're a little dated, quite a few mention emailing Popla with the comments.

Is the POPLA Portal a new thing that I must use, or can or should I only email it to them?

hop_skotcher

My planned response (I'll remove this after your comments just in case the PPC do a Google search, and then re-instate once the POPLA case has completed) :

In response to the 61 point "evidence pack" Ocean Parking have submitted for their speculative and disputed parking charge. I do not intend to address each and every point they have raised in detail as their submission is clearly a repetitive and contradicts their own evidence in Section G.

Ocean Parking state their Terms and Conditions in Section B (page 5 - point 6), in addition to Section G (pages 47-49), however, there is no evidence in the terms and conditions for patrons of the onsite retailers having to use tablet/keypad devices to validate and extend their parking. With no explicit declaration of the use of keypad devices it cannot fairly be assumed that parking customers would or should be aware of this requirement or where to submit such information.

Ocean Parking state in Section B (page 7 - point 14) that they provide the retailer (The Gym Group) with a keypad tablet to enable customers to extend their stay, however as aforementioned, this is not stated on their Terms and Conditions (see Section B point 6), in addition there is no signage, which indicates where customers would locate the provided tablet devices to enter registration details, therefore customer cannot fairly be assumed to immediately know that such devices exist nor where to locate them in order for extend their stay for a maximum of 3 hours.

Ocean Parking state in Section B (page 6 - points 9, 10) that customers are permitted for a maximum of 2 hours parking, however, Ocean Parking by their own admission (see page 7 point 14 "...customers to extend their stay on-site" demonstrates that patrons are permitted for an additional 3rd hour of parking, thus the maximum permitted parking is in fact 3 hours not 2 hours as alleged by the operator. The operators own Contractual Warning Signage do not clearly state this.

Ocean Parking state in Section B (page 6 - point 11) that Contractual Warning Signage is provided throughout the site stating the terms and conditions, however, the T&Cs themselves are written in extremely small font and held on posts some 9ft in the air in the parking area, which is completely illegible from ones car. To further highlight this, the terms and conditions as provided by the Operator themselves on Page 48 are barely legible thus a customer cannot be expected to be able to read the terms and conditions from their vehicles and certainly not from a moving vehicle.

The only clear portions of the Terms and Conditions in the signage provided by the Operator is the £100 Parking Charge consequential action for contravention with no thought for allowing customers to be capable of reading said T&Cs which certainly provide insufficient data for customers to clearly understand what the T&C’s are.

The photographic evidence provided by Ocean Parking (see Page 48), does, in fact, confirm that the signage is not clear, providing no clarity on usage (i.e. there are two mentions of the word 'may' and one 'will'). As you can see the following is printed in the main readable text "Failure to comply with the terms & conditions for parking MAY result in a £100 Parking Charge". Then in the 4th line in the body of the T&Cs “If you fail to comply with the Parking Contract, you WILL become liable… ”.

It certainly cannot be argued that the terms & conditions are legible or clear, there is no clarity to the sign, or indeed attention to detail. I reiterate that this leaves more questions then answers in regards to the accuracy of anything else written within the body of the text.

Further to this, whilst the operator on Page 50 has provided a layout of the signage, there are no signs by the retailer store itself therefore parking customers will only notice the signs if using other retail stores where the signs are positioned or if customers park far away from their eventual destination, neither of which cannot be guaranteed or assumed.

As business costs are not losses and they cannot be passed down to a motorist as GPEoL as stated by the Department for Transport (DfT) [see below], Ocean Parking seem to infer that it is up to me as a consumer to demonstrate how their £100 is not a GPEOL - This is unreasonable and cannot be assumed and in any case is a moot point as the burden of proof is upon Ocean Parking to demonstrate the loss that has occurred as a result of the alleged breach. Despite submitting this huge 'evidence' pack they have clearly failed to do this.

Ocean Parking state a goodwill gesture charge of £20 was offered, but have not provided any Genuine Pre-estimated of Loss (GPEoL) breakdown included to show how they have come up with £100 or even the reduced £20 charge. The fact that Ocean Parking have stated on many occasions (see Section B, points 19, 25 and 55) that they are willing to accept £20 as opposed to £100 for the alleged offence highlights this flagrant bending of the guidelines.

The DfT guidelines state that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." 

In addition the Office of Fair Trading information to the BPA about parking charges states that these are not automatically recoverable: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.”

Furthermore, it would be imprudent of me to ignore and not research the matter as fully as possible using the internet - this is a primary goal of the technology. To this end the 'Findlaw' website suggests the following "Just as you would seek advice when going to court, you should in most cases seek advice when choosing and pursuing ADR." - Which is exactly what I have done.

It is clear that Ocean Parking are attempting to create a loss where none had existed prior to the issuing of the PCN. As The DfT Guidelines state that the losses as aforementioned are all business losses excluded by the DfT’s guidelines.

I would conclude that the costs of Issuing the Notice, postage of Notice to Keeper, and Final Notice to Keeper, Admin and Man Hours are all business losses that Ocean Parking are trying to recover. As is the 'remainder' to be paid back into office wages. Therefore, the charge is quite clearly to recover office losses and are not GPEoL.

Ocean Parking state on Section B (page 14 - points 35 and 58) that they enclosed the landowner contract, however, upon inspection of said contract, it is very dated (11/05/16) and with the overly redacted details the operator has not provided any evidence that the landowner had granted authority on the date of the alleged offence. One cannot possibly nor fairly be assumed that the contract continues since the client name is obstructed from view, the customer at the alleged time of the offence may no longer have been a trading company or this contract could relate to the previous landowner or agent.

Ocean Parking state in Section B (page 6 - point 8) that their systems are checked for anomalies prior to posting PCNs, however, the operator has not provided any evidence of how anomalies are checked or the health status of said keypad devices that exist in the retail venues, whilst the retailer in question (The Gym Group) have evidence of emails related to complaints of the keypad devices often not working for customers.

Ocean Parking have clearly demonstrated inconsistencies throughout this case in both their apparent signage and frankly illegible T&Cs to distract from the facts of this matter in their evidence to POPLA. The major issue is in regards to the aforementioned clear and legible contractual signage and the tablet registration parking extension requirements which is very clearly lacking in any of the evidence provided by the operator. Along with many other points raised above in relation the excessive and undocumented parking charge break down.

Consequently having reviewed over the Operators case and their evidence, I respectfully request that this appeal is upheld and the charge dismissed as set out in my aforementioned arguments.

Coupon-mad

Wow you have been reading ancient threads. Remove everything about GPEOL. It died a death in 2015. Seven years ago!

Just cut your comments right down to 2000 characters (not words).  No emailing it.

hop_skotcher

@Coupon-mad - yeah I did think that when I first saw them.

Right, got something like this now:

Dear Assessor,

In response to Ocean Parking’s (PPC) evidence, I highlight the key points justifying why this charge should be cancelled.

In the PPCs T&Cs (Section B pt 6 & Section G), no evidence exists detailing how patrons of retailers use tablet devices to extend parking. Furthermore, the PPC hasn’t provided imagery evidence of the actual devices or any signage indicating where customers would locate them, thus it cannot fairly be assumed that customers would know that such devices exist nor where to locate them. Upon later inspection, devices are situated in remote parts of stores, that don’t prominently draw gym users’ attention.

Section B pt 11 states signage is provided across the site, but, the T&Cs are written extremely small on posts 10ft above groundlevel, thus being completely illegible to customers from their vehicles - in motion or parked. The PPC evidence (see Pg48) shows the extent of the poor legibility.

Additionally, the PPCs evidence (Section F) shows a lack of signage near The Gym Group premises thus gym users have no visibility to the T&Cs signage.

The same evidence does, in fact, confirm the ambiguity of the T&Cs (i.e. there are two mentions of the word 'may' and one 'will'). The following is printed in readable text "Failure to comply with the terms & conditions for parking MAY result in a £100 Parking Charge". Then in the 4th line in the body of the T&Cs “If you fail to comply with the Parking Contract, you WILL become liable”. This inconsistency and inaccuracy results in ambiguity for customers on what the T&Cs actually are.

The PPC enclose the landowner contract (section G), however, it is dated (11/05/16) and overly redacted providing no evidence that the landowner had granted authority on the date of the alleged offence. One cannot possibly nor fairly be assumed that the contract continues since the client name is obstructed from view, the client may no longer be a trading company or the provided contract could relate to the previous landowner.

2000 characters exactly

Thoughts?

Coupon-mad

I think this could be clearer (i.e. there are no photos, not no 'imagery') and you you should not tell POPLA that these ipad/keypads exist:

Furthermore, the PPC hasn’t provided imagery evidence of the actual devices or any signage indicating where customers would locate them, thus it cannot fairly be assumed that customers would know that such devices exist nor where to locate them. Upon later inspection, devices are situated in remote parts of stores, that don’t prominently draw gym users’ attention.

My point was there is no evidence for POPLA to conclude that any keypads exist, let alone that they were working (unless they've attached an evidence log of partial VRMs who did use it at the material time?).

Not that gym users wouldn't know they exist.

POPLA doesn't know and can't presume such keypads exist.. no photos supplied of the purported ipad nor prominent signs pointing to it.  How can POPLA conclude there was a breach of a 'relevant obligation' if that device isn't in evidence?

hop_skotcher

Thanks - will update it... In the PPC's evidence pack they did provide a log of partial VRMs supposedly submitted from the devices to their systems... But as you highlight no direct photos of the tablets.

hop_skotcher

Thanks - will update it... In the PPC's evidence pack they did provide a log of partial VRMs supposedly submitted from the devices to their systems... But as you highlight no direct photos of the tablets.

hop_skotcher

Hi @Coupon-mad, just got the final decision from POPLA - As you predicted my appeal was unsuccessful.

What's the process now? - Just wait and see what happens?