Civil Enforcement POPLA Appeal Response - Help Required

babaman8000

hi all, 

i would greatly appreciate your assistance in dealing with a POPLA appeal that i did against Civil Enforcement. 

I parked in a Civil Enforcement park car park and forgot to pay for the parking and they hit me with a £100 fine reduced to £60 if i pay early. I appealed to CE but it got rejected so i then appealed to POPLA and CE have responded with comments on my POPLA Appeal. I have 3 more days to respond before POPLA make a decision. 

I will share my own appeal to POPLA and CEs response....any advice on how i can respond to CE will be appreciated. Thanks

*** My POPLA  Appeal *****

I am writing to appeal the Parking Charge Notice (PCN) issued by Civil Enforcement based on the following reasons:

1. I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

2. There will be no admissions as to who was driving and no assumptions can be drawn. If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner.

2. There has been no admission as to who was driving the vehicle at the time of the alleged offence, rendering the PCN unenforceable. Upon receiving the PCN, it became apparent that there has been no admission or declaration regarding the identity of the driver of the vehicle at the time of the alleged contravention. As the registered keeper of the vehicle, I am under no obligation to provide details of the driver without receiving a Notice to Driver (NTD) or Notice to Keeper (NTK) that complies with the requirements outlined in the Protection of Freedoms Act (POFA) 2012. It is well-established in case law, particularly the case of Elliot v Loake (1982), that in order for liability to be established in cases of alleged parking contraventions, the parking operator must demonstrate that the driver of the vehicle has been identified and informed of the alleged offence. In the absence of such identification, any attempt to enforce the PCN against the registered keeper of the vehicle is inherently flawed and unenforceable. Therefore, I respectfully submit that the failure to provide information regarding the identity of the driver constitutes a fundamental breach of procedural fairness and renders the PCN issued by Civil Enforcement invalid. Accordingly, I request that you consider this point as sufficient grounds to cancel the Parking Charge Notice issued against me. If it is determined that Civil Enforcement has failed to comply with the legal requirements regarding driver identification, I respectfully request that my appeal be upheld, and the PCN be cancelled accordingly.

3. The signage is also unclear as it does not state the grace period that if that is exceeded, you will need to pay for parking after that point. The Notice to Keeper (NTK) does not comply with the Protection of Freedoms Act 2012 (POFA) requirements, and that the alleged contravention occurred within a reasonable grace period. The Notice to Keeper fails to establish keeper liability under POFA. It neither identifies the driver nor meets the requirements set forth in Schedule 4 of POFA. The NTK fails to provide the necessary information required by law, such as the period the vehicle was parked, thereby invalidating any liability on the part of the keeper.

4. Furthermore, I contend that the alleged contravention occurred within a reasonable grace period. According to the British Parking Association's Code of Practice, parking companies are required to allow a minimum grace period of 10 minutes at the end of the parking period. It is widely acknowledged that ANPR systems, like the one used by Civil Enforcement, may inaccurately record the length of stay in a car park, particularly concerning the time spent entering and exiting. Therefore, the alleged overstay should be considered within the context of this grace period.

5. The charge imposed by Civil Enforcement is £100, with a discounted rate of £60 if paid within 14 days. This raises concerns regarding the calculation method used to determine the parking charge. The charging structure employed by Civil Enforcement suggests that the PCN fee is inflated to incentivize early payment. This practice does not align with the principles of a genuine pre-estimate of loss. Instead, it appears to be designed to coerce motorists into swift payment, irrespective of the actual loss incurred by the parking operator. Furthermore, the significant disparity between the standard charge and the discounted rate further calls into question the validity of the parking charge as a genuine pre-estimate of loss. It is implausible that the parking operator's expenses or losses vary to such an extent based solely on the timing of payment. In light of these concerns, I respectfully request that you scrutinize the calculation method used by Civil Enforcement to determine the parking charge. If it is found that the charge does not genuinely reflect the losses incurred by the parking operator, I urge you to uphold my appeal and revoke the Parking Charge Notice accordingly.

6. The PCN states that it will incur a debt recovery charge of £70 in additional the initial parking charge. The inclusion of £70 for debt recovery renders the PCN non-compliant with the Protection of Freedoms Act (POFA) 2012. This practice is in direct violation of the provisions outlined in POFA 2012, which only permits the recovery of the initial charge. By incorporating a debt recovery fee into the PCN, Civil Enforcement is effectively attempting to recover costs beyond those allowed under POFA 2012. This renders the PCN non-compliant with the statutory requirements set forth by the legislation. I would like to emphasize that the primary purpose of POFA 2012 is to provide a legal framework for the recovery of unpaid parking charges. However, the inclusion of additional charges, such as debt recovery fees, goes beyond the scope of the Act and undermines its intended purpose.

7. The signage on display does not adequately demonstrate that Civil Enforcement has the written authorisation of the landowner (or their appointed agent) to pursue parking charges. Upon reviewing the signage at the location of the alleged contravention, I noted a glaring omission regarding the lack of explicit information regarding Civil Enforcement's authority to issue parking charges on behalf of the landowner. The absence of any indication of written authorisation raises significant doubts about the validity of the PCN issued by Civil Enforcement.

**** Civil Enforcement Response to my above points **********

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.

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.”

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 pre-estimation of loss.

Additional Notes

12. The Notice was issued as the Driver failed purchase parking for vehicle registration XXXXXX.

13.This Parking Charge Notice was issued under Schedule 4 of the Protection of Freedoms Act 2012. As XXXXXX has failed to provide us with the driver’s details we are holding him liable as Registered Keeper. Please find enclosed a copy of their original appeal.

14.The Appellant’s details as the registered keeper were obtained from the DVLA on 21/03/2024 and the PCN was sent on 24/03/2024.

16.Signage in the car park clearly states, "PHONE AND PAY OR PAY AT MACHINE- PAYMENT MUST BE MADE BEFORE LEAVING THE CAR PARK. IF YOU BREACH THESE TERMS YOU WILL BE CHARGED £100 (REDUCED TO £60 IF PAID WITHIN 14 DAYS)”.

17.The Driver failed to purchase parking for the vehicle registration XXXXX, as can be seen from the attached report which shows the vehicles that did purchase parking on the day in question. The report also demonstrates that other drivers were complying with the terms and conditions and that Phone and Pay and Payment Machine was in good working order on the day in question.

18.Whilst we acknowledge the Driver’s submissions regarding the signage at the car park, there are many clear and visible signs in the car park advising motorists of the terms and conditions, as can be seen from the attached image plan. It is the motorist’s duty to read the signs and act in accordance with the terms and conditions.

19.Please note that Civil Enforcement is managing the car park on behalf of the Landowner. Please note we have attached The Confirmation of Authority.

20.We refer to the Appellant’s comments, the PCN states “Payment not made in accordance with terms displayed on signage”, given that a motorist may fail to pay in accordance with the signage for various reasons (e.g., entering the wrong registration, exceeding the time paid for, failing to make payment etc.) the PCN wording is stated as above to cover each of these scenarios.

21.Whilst we do not advertise the grace period on signage, it compliant with the guidance provided by the British Parking Association in their Code of Practice, which states that motorists should be allowed 10 minutes in which to decide if they are going to park or not. The Appellant’s duration of stay clearly exceeds any reasonable grace period.

22.The amount of our Notice (£100 reduced to £60 if paid within 14 days) is in accordance with the guidance provided by the British Parking Association in their Code of Practice, and we would refer you to paragraphs 9 – 11 of our response.

24.ANPR cameras are utilised in the car park to monitor the vehicles entering and exiting the car park. Our ANPR cameras operate within the guidelines set out in the British Parking Association Code of Practice. The high-tech cameras are not designed to monitor movements within the car park, and we do not operate Closed Circuit Television (CCTV) cameras.

26. Whilst we appreciate the Appellant’s submissions, we are unable to take into account mitigating circumstances; the terms and conditions of parking were clear. As the Appellant failed to adhere to the terms and conditions of the car park, the PCN was issued correctly.

27.There are many clear and visible signs in the car park advising motorists of the terms and conditions, as can be seen from the attached image plan. Signage at the car park clearly states: " PHONE AND PAY OR PAY AT MACHINE- PAYMENT MUST BE MADE BEFORE LEAVING THE CAR PARK. " These parking terms apply at all times.” In the event that a driver fails to adhere to the stated parking terms they will be charged at the Notice level.

28.It is our submission that Drivers have an obligation to check for signage when parking on private land – the signs do not need to be placed directly in the position where they parked, they simply must be placed throughout the site so that drivers are given the chance to read them (BPA Code of Practice, p9.2, and see also BPA Code of Practice, 19.3).

29.We refer you to paragraph 3-8 of our response (above) as well as the following statement made by the British Parking Association, which 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.”

30.Our signs are 495mm x 600mm, which is in accordance with the British Parking Association (‘’the BPA’’) Code of Practice. Civil Enforcement Limited is a member of the BPA’s Approved Operator Scheme and must comply with The Code of Practice. S.19.3 (page 12) of the BPA Code of Practice Version 8 – January 2020 states that signs should be at least 450mm x 450 mm and our signs are significantly larger than this. Therefore, the signs are clearly legible and visible for the drivers.

31.The Operator is a private parking enforcement and management company and is a member of the Approved Operator Scheme (‘the AOS’) run by the British Parking Association (’the BPA’). The Operator is authorised to request the details (name and address) of the Registered Keeper of a vehicle which has not kept to the terms and conditions of parking, by virtue of Section 27 (1) (e) of the Road Vehicles (Registration And Licensing) Regulations 2002 which states:

“The Secretary of State may make any particulars contained in the register available for use…

(e) by any person who can show to the satisfaction of the Secretary of State that he has reasonable cause for wanting the particulars to be made available to him.”

32.Please note that our Data Protection information is printed on the signage displayed at the entrance to this private land.

Fruitcake

It is not a fine, nor was an offence committed.

Elliot v Loake was a criminal case where the identity of the driver was proven by the crown due to forensic evidence being available. It is not applicable to civil (contract) law.

There is no requirement in the PoFA for a PPC to identify the driver. If the driver's identity is not known, then the PPC may have the right to hold the keeper liable if they have complied with the strict requirements of the PoFA.

Not including the period of parking is a minor point, but is relevant only if the entry/exit or parked from/to times are not given on the NTK. This could be as simple as time stamped photos.

Not a genuine pre-estimate of loss went out with the Beavis case in 2015.

Please show us both sides of the NTK. Redact all personal data but leave the location, and dates showing.

Plan A is still and always will be your best option.

Coupon-mad

I am not sure I can see winning points and don't really understand why you tried POPLA. It's not truly independent.  And some of your points aren't correct in law (the one about the amount of the PCN has no legs, for example).

If your car was there more than 10 minutes without paying, then you were bound to get a PCN by their exit ANPR camera capturing your VRM.

But we are not saying to pay.

Anyway, it's not about the words. It's about the pictures.  The signage images they supplied, and the NTK and the landowner authority.

babaman8000

i have attached the NTK, land owner confirmation and the image of the sign regarding the parking. 

I appealed to POPLA as CE rejected my PCN appeal and my only other option was to appeal to POPLA in their rejection. what other option could i pursue?. I was using chatgpt to write my popla appeal so yeah, if there is wrong stuff in there, then not surprised.


i dont want to pay £60 or £100 fine, that is just robbery given that parking for 2hr is only 50p. 

The car park only has a ANPR that checks whether payment has been made when you leave the car park. no parking attendant on site. 

sorry, what is Plan A?
 

Gr1pr

Plan A is a complaint to the landowner to try to obtain a cancellation 

Plan B is an appeal to CEL , already done 

Plan C is an appeal to Popla, already done , awaiting the outcome after the current comments stage 

Plan D is to argue your case before a judge in your local civil court within the next 6 years if it remains unpaid 

If you lose in court then your bill will be about £200 to be paid within 30 days 

Using chatgpt was and still is a bad idea 

All this information is easily found in the newbies sticky thread in announcements by coupon mad, so all there for the reading for over a decade, no need for chatgpt

So if you have exhausted plans A to C , then court is your next destination once Popla was used and failed 

Not paying in a pay to park car park seems to me to be an obvious win for CEL in court , unless they mess up their claim or unless you find a good legal reason , think about it, its a pay to park car park, the driver did not pay, which triggered the amount shown on the PCN and also on the signs 

babaman8000

I have done a partial Plan C. i appealed to Popla and CE have come back with a response which i have posted, i habe the opportunity to respond to their comments before POPLA makes a decision.

anyways, i will see what i can respond with

Gr1pr

I concluded that you were at the popla comments stage, but having studied what you have written and showed us I saw nothing of note, no good reason to get the PCN cancelled, the driver entered a pay to park car park, stayed for up to an hour and didn't pay the fee, so the cameras triggered a postal PCN for £100 ( I note that this is written in tiny font on the signs. )

Coupon mad stated that the obvious ripost centres on no landowner authority, possibly meaning that that contract is flawed or non existent , poor and inadequate signage on site, such as the £100 warning in small font buried in the wording etc

So legal terms, not excuses like the driver forgot, that wont wash with Popla and probably not in court 

I think that POPLA will agree with CEL and the bill will revert to the £100 on the PCN and sign , double if you lose in court. Neither CEL nor POPLA were ever going to cancel this PCN, absolutely no chance of that happening, IMHO 

Sometimes a spade is a spade, even with a broken handle , its a clear and obvious error, and VAR will award a penalty, the penalty given at the time of the foul, so upheld by VAR. But you are not up against Mbappe , more like Southgate or Waddle. Your task is to save it, to stop the opposition going forward and possibly winning the cup

Coupon-mad

Why was the car there almost an hour without paying 50p?

babaman8000

just forgot to pay

babaman8000

no worries guys/gals, appreciate the honest opinions. will keep this thread updated on the POPLA decision

LDast

You need to thoroughly read the Newbies/FAQ thread if you are asking questions about what "other option" you can choose. Losing a POPLA Appel mens nothing and has no bearing on any future outcome. You are not bound by the assessors decision. 

The only real independent arbiter is a judge. That is what you want. However, not all PCNs result in a court claim and of those that do and follow the advice provided in the Newbies/FAQ and Template Defence threads end up being successful or discontinued.

There are some new additions that can be added to the defence to request that the cain is thrown out, depending on how the claim is presented and also for abuses of process such as claiming for more than the original amount of the PC which is £100.