CEL POPLA Appeal - 95 Otley Road

uncivilenforcement

Hi there,

I'm looking for help with drafting a POPLA appeal against CEL which I am planning to send in the next few days. I am a bit late in that it is currently day 28 since I received the rejection of my appeal but I understand from reading on the forums that the POPLA code is valid for 33 days and that I have a few more days to submit the appeal to POPLA.

The parking event happened on the 21st December at this car park: https / maps.app.goo.gl/xDf4U11cuKkdTtS18; payment was made 23 mins after arrival for 1 hour of parking and the car was parked for 33 mins. I am unable to find details of the landowner, and reading the replies to the Google reviews of the car park, it looks like the landowner is unfortunately supportive of the PPC's position.

I have lost the original PCN and stupidly did not take a picture of it, however it was POFA-compliant upon comparing the specific wording on both sides of the letter with the examples on the forum for CEL. The contravention alleged on the PCN was for "payment not made in accordance with terms displayed on signage".

I also stupidly, did not make a copy of the appeal text that was sent to CEL. However, this was the standard blue text in the sticky post, with the only addition being to add something along the lines of 'to resolve this dispute, I attach a payment receipt for the duration of parking made by the driver' and attached a copy of the RingGo receipt for the parking -- the driver was not identified at all. 

The response to representation does not contain any pictures or any detail beyond this:

We have carefully reviewed your appeal and/or evidence provided taking into consideration all the points you have raised in relation to this Parking Charge Notice. On this occasion, your appeal has been unsuccessful for the following reason:

Signs in the above car park clearly advise payment for parking must be made within 10 minutes of arrival and on this occasion you failed to do so.

It is therefore our position that the Parking Charge was validly issued because of the above detailed breach of the terms and conditions set out on signs in the car park. You have now reached the end of our internal appeals procedure. 

As such, I am planning to send the following to POPLA - it contains the standard point on no evidence of landowner authority, but was wondering if I could get some thoughts on points 1 and 3, and whether there are any other points I have missed?

I do think point 1 is poorly worded but essentially, I am trying to get across that parking was paid for and the driver experienced difficulties making payment as RingGo did not accept AmEx nor Maestro cards which were the only cards available to the driver at the time.

I am writing to appeal the above parking charge notice issued to me by Civil Enforcement Ltd on 29/12/2024 for parking at 95 Otley Road, Headingley. I have already appealed to the operator, and they have rejected my appeal. I believe this charge has been issued incorrectly, and should be cancelled for the following reasons:

1) Grace Period: BPA Code of Practice – non-compliance
It was presented to Civil Enforcement Ltd in the original representation from the keeper that the requisite payment for the duration of parking during the alleged contravention was made by the driver. The actual duration of parking that the alleged contravention relates to was for a period of 33 minutes, whereas the duration of parking paid for by the driver, for 1 hour, was well in excess of this period.

The British Parking Association Code of Practice, section 13.1, states that the driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’, and if having had that opportunity, the driver decides not to park but chooses to leave the car park, the operator must provide the driver a reasonable consideration period to leave.

Not only was the duration of parking paid by the driver in excess of the actual duration of parking alleged by the PCN, the requirement placed on the driver to make payment within 10 minutes of arrival is not only onerous, but also insufficient in two aspects – firstly, to be able to provide the driver the required time and chance to be able to consider the Terms and Conditions the terms on display to their fullest extent (further raised as an issue in section 3, relating to signage), and secondly, the time required to follow the steps required in order to be able to make payment; in an attempt to make timely payment, the driver was required to download the operator’s application of choice for making payment by phone, RingGo, before having to jump through through hurdles relating to restrictions on accepted payment networks and types of cards accepted by the application developer and/or the operator. 

As such, I argue that the strict ten minute rule enforced by the operator not only does not give the driver the chance to consider the Terms and Conditions before entering into a parking contract, per section 13.1 of the BPA CoP, to the fullest extent, but such a time restriction also shows a disregard and inconsideration for potential issues in payment, or other extenuating circumstances which could be entirely foreseeable by the operator.

2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As Civil Enforcement Ltd does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.
The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
- the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
- any conditions or restrictions on parking control and enforcement operations, including --- any restrictions on hours of operation
- any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
- who has the responsibility for putting up and maintaining signs
- the definition of the services provided by each party to the agreement

3) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. 

In this instance, the operator has not demonstrated that the signage at the site complies with the requirements of POFA 2012 nor Section 18 of the BPA Code of Practice. The Code requires that:
- Signs be prominently displayed at all entry points and throughout the car park.
- The terms and conditions be clear, legible, and easily understood.

Civil Enforcement Ltd has provided no photographic evidence to confirm at any point to illustrate that the signage at the car park was visible, legible, or compliant. Without clear signage, no contract could have been formed between the driver and Civil Enforcement Limited.

As such, for this appeal, I request Civil Enforcement Ltd to submit strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I also submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Thanks for any help in advance and I do apologise if I have not been thorough enough in searching the forums for things that I could include to adapt

Coupon-mad

Nice timing and good that you didn't rush the POPLA stage.

You've missed that the '5 minute rule' ("you paid too late!" is now banned.

Read the BBC and MSE articles about it and our thread: 'news on the 5 minute rule' which links to Will Hurley saying that affected cases WILL BE CANCELLED ON APPEAL.

kryten3000

Although WillH was talking about the IPC's "Independent" Appeal Service and not POPLA, I see no reason why POPLA should not cancel for the same reasons.  Parking was paid for in full before the driver left the site.  That is exactly what the revised industry code now says is allowed since 17/02/25 and should be applied retrospectively to the start of the year.  Edit: I just noticed this charge was issued 29/12/24 so might be trickier to pull this off, but it is still a valid argument.

This is very unusual as normally an operator will refer to the code that was current on the date of parking, but you will need to spell this out to the POPLA assessor.  It is also possible that CEL will "withdraw your appeal" which is POPLA's ridiculous way of saying that the operator has decided not to submit any evidence in which case you win by default.

uncivilenforcement

Thanks both, really appreciate this!

I had read the BBC article casually a while back, but did not think to apply this to this appeal!

I have added a little bit to point 1 (amendments in red), does this look good, or does this warrant a separate point in itself?

1) Grace Period: BPA and single private parking sector Codes of Practice – non-compliance and unfairness

It was presented to Civil Enforcement Ltd in the original representation from the keeper that the requisite payment for the duration of parking during the alleged contravention was made by the driver. The actual duration of parking that the alleged contravention relates to was for a period of 33 minutes, whereas the duration of parking paid for by the driver, for 1 hour, was well in excess of this period and paid before the car exited the car park.

The British Parking Association Code of Practice, section 13.1, states that the driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’, and if having had that opportunity, the driver decides not to park but chooses to leave the car park, the operator must provide the driver a reasonable consideration period to leave.

Not only was the duration of parking paid by the driver in excess of the actual duration of parking alleged by the PCN, the requirement placed on the driver to make payment within 10 minutes of arrival is not only onerous, but also insufficient in two aspects – firstly, to be able to provide the driver the required time and chance to be able to consider the Terms and Conditions the terms on display to their fullest extent (further raised as an issue in section 3, relating to signage), and secondly, the time required to follow the steps required in order to be able to make payment; in an attempt to make timely payment, the driver was required to download the operator’s application of choice for making payment by phone, RingGo, before having to jump through through hurdles relating to restrictions on accepted payment networks and types of cards accepted by the application developer and/or the operator. 

As such, I argue that the strict ten minute rule enforced by the operator not only does not give the driver the chance to consider the Terms and Conditions before entering into a parking contract, per section 13.1 of the BPA CoP, to the fullest extent, but also that such a time restriction shows blatant a disregard and inconsideration for potential issues in payment, or other extenuating circumstances which could be entirely foreseeable by the operator.

This argument is also supported by the position of the Private Parking Scrutiny and Advice Panel, who, after extensive public security of the private parking sector’s militant practices, deployed an update to the private parking sector’s single Code of Practice on 17th February to “[ensure] that motorists who face genuine difficulties in paying within a short timeframe are treated fairly”.

[Screenshot of www.britishparking-media.co.uk/news/action-taken-on-parking-rules-to-help-motorists here]

To this extent, the current Appeals Charter of the single CoP, Annex F.1 Exempt Circumstances states “parking charges must not be pursued in relation to vehicles where evidence is provided that they are identified as [...] a vehicle parked in a car park managed by fixed camera technology (ANPR and/or CCTV) for which payment has been made for the full period of parking prior to the vehicle leaving the car park”, which reflects the BPA and industry’s identification of the unjustness in pursuing such cases by operators.

Coupon-mad

I'd change the heading:

1) Grace Period: BPA and single private parking sector Codes of Practice – non-compliance and unfairness

to

1. This is a '5 minute rule' case: the operator and POPLA must cancel it following the promises made by industry representatives to MPs and to the BBC.

uncivilenforcement

Coupon-mad said:

I'd change the heading:

1) Grace Period: BPA and single private parking sector Codes of Practice – non-compliance and unfairness

to

1. This is a '5 minute rule' case: the operator and POPLA must cancel it following the promises made by industry representatives to MPs and to the BBC.

Thanks - I have amended and submitted; will report back with any updates

uncivilenforcement

Hey all,

I'm back again – unfortunately the POPLA appeal didn't work and it looks like whilst I was on holiday (since end of December), a claim form was issued and a default judgement was made. I'm actually still away; I asked a friend to check my flat and post for me.

The POC is the standard CEL POC that does not contain the specific term breached.

I've seen a recent similar post to my situation (in missing the AOS due to holiday) and I think I understand the next step before an N244 would be to appeal to CEL to ask them to consent to set aside the judgement, but I was wondering if I could get some guidance on where to send this to as I've seen some mention of sending this to a named solicitor, but CEL appears to be in house?

Thanks

Coupon-mad

Don't bother with that step as CEL won't agree. They fob people off in my experience and have just lost their Head of Legal to ZZPS.

You may gave to go straight to N244 with a Witness Statement, proof of being abroad and a Draft Order that the CCJ is to be set aside and the entire claim should be struck out for failure to comply with Part 16 and because this was a '5 minute rule' case.

Proceeding with such a case is sharp practice and illegal, contrary to the Consumer Rights Act 2015, which the industry finally cottoned on to and banned pursuit of 5 minute rule PCNs a year ago.

For these reasons, there has been wholly unreasonable conduct from a trader who had no 'reasonable cause' to obtain DVLA data from the outset.

Show us the POPLA decision.

How did they fail to see this was a 5 minute rule banned case?

uncivilenforcement

Thanks, I'll get something drafted up ASAP :)

The POPLA decision, in my opinion, was contradictory and selective with where the Single CoP vs BPA CoP v9 was used. The timing element that @kryten3000 mentioned at the time I opened the thread did play in as well.

Assessor summary of operator case

The parking operator issued the parking charge notice (PCN) for permit holders/payment not made in accordance with terms displayed on signage. 

Assessor summary of your case

The appellant raised the following points from their grounds of appeal:

• They say it is an example of the 5-minute rule per promises made by the industry representatives to MPs and the BBC, they quote section 13.1 if the British Parking Association (BPA) Code of Practice.
• They say there is no evidence of landowner authority.
• They say the signs are not prominent, clear or legible.
• They say there is insufficient notice of the parking charge.

In support of their appeal, the appellant submitted the following:

1. Their grounds of appeal which is summarised above.

This evidence has been considered in making my determination.

Assessor supporting rational for decision

The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper in the event that the driver or hirer is not identified. Parking operators have to follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver. In this case, the PCN in question has the necessary information and the parking operator has therefore successfully transferred the liability onto the registered keeper. When assessing an appeal, POPLA considers if the parking operator issued the parking charge notice correctly and if the driver complied with the terms and conditions for the use of the car park on the day.

The parking operator provided evidence of the signs on the car park, which advise that a £100 PCN will be issued to drivers who do not make payment within 10 minutes of arrival. The operator has provided a copy of their automatic number plate recognition (ANPR) images which show that the vehicle entered the site at 11:34 and exited at 12:07, a total duration of 33 minutes. The operator has provided a copy of their payment report which shows that the appellant made payment at 11:57, 22 minutes after their arrival to the site.

I will be assessing the grounds of appeal using the new Single Code of Practice which replaced the 2024 British Parking Association (BPA) Code practice and relates to all PCN’s issued on or after 1 October 2024. However, the grounds of appeal relating to signage at the site will be assessed using the 2024 BPA Code of Practice Version 9 as this still currently applies. The Private Parking Sector Single Code of Practice (The Code) sets the standards its parking operators need to comply with.

Section 14.1 of the Code states that where controlled land is being managed on behalf of a landowner, written confirmation must be obtained before a parking charge can be issued. In this case the operator has provided a copy of the agreement they have with the landowner which shows they are authorised to operate on the land. I am satisfied that the agreement meets the requirements set out in section 14.1 of the code. The operator has also provided photographs showing signage at the site and that automatic number plate recognition (ANPR) cameras are in place at the site. On the balance of probabilities, if this equipment is placed on the land and the landowner hasn’t given permission, I doubt that they would allow them to operate on the land.

The BPA has a Code of Practice which sets the standards its parking operators need to comply with. Section 19.2 of the BPA Code of Practice tells operators that they must have sign at the entrance telling drivers that the car park is managed and that there are terms and conditions they must be aware of, Section 19.3 of the BPA Code of Practice tells operators that they need to place signs containing 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.

The signs need to clearly set out the terms and conditions of parking at the site. The operator has provided a site map showing that there are signs throughout the car park, I am satisfied with the size of the car park and the number of signs around the site that the driver would have seen the signs. Photographs of the signage have also been provided which clearly show the terms and conditions for parking at the site which includes payment being required within 10 minutes of arrival. The parking charge for failing to comply with the terms and conditions is also clearly shown in bold on the signage as well as advising that ANPR cameras are in use.

It must be noted as shown in the appellants grounds of appeal that the 5-minute rule only comes into effect from 17 February 2025. As the parking event in this case took place on 12 December 2024, which is prior to 17 February 2025, the 5-minute rule does not apply.

Section 5.1 of the Single Code of Practice states that parking operators must allow a consideration period of appropriate duration, subject to the requirements set out in Annex B to allow a driver time to decide whether or not to park. The minimum consideration period required is 5 minutes, however, in this case the operator allows a motorist 10 minutes from entering the site to park, read the terms and conditions and decide if they can comply with them, if they cannot, then they can leave without incurring a PCN. Where a motorist chooses to stay, then they are deemed to have accepted the contract offered in the signage, which in this case is to make payment within 10 minutes of arrival.

As the appellant remained on site for 33 minutes, they have accepted the contract offered within the signage and by not making payment within 10 minutes of arrival they have breached the terms and conditions.

I acknowledge that the appellant says that there is insufficient notice of the parking charge. The appeal reasons raised have led me to consider the relevant case law of ParkingEye v Beavis. The Supreme Court considered private parking charges in a high-profile case, ParkingEye v Beavis. The Court recognised that parking charges have all the characteristics of a contractual penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists. 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 itself. 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 legibility of the signage. After reviewing the signage provided by the operator, I am satisfied that the signage is legible, and the charge amount is in the region of £85 and therefore allowable. The Court’s full judgement in the case is available online should the appellant want to read it.

After considering the evidence from both parties, the motorist did not make payment within 10 minutes of arrival and therefore did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal.

POPLA is not involved with the financial aspect of the parking charge. For any queries regarding payments, the appellant will need to contact the parking operator directly.

Coupon-mad

"It must be noted as shown in the appellants grounds of appeal that the 5-minute rule only comes into effect from 17 February 2025. As the parking event in this case took place on 12 December 2024, which is prior to 17 February 2025, the 5-minute rule does not apply.

After considering the evidence from both parties, the motorist did not make payment within 10 minutes of arrival and therefore did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal."

Hahahahahahahaha!!!!

That is the polar opposite of what was promised on national TV by Will Hurley on behalf of the entire industry.

POPLA have basically said that the Consumer Rights Act 2015 regarding unfair terms being unenforceable (which is what caused the clamour, court cases and the ban on the 5 minute rule) only came in when the BPA said it did, when this rogue industry caught up with the law a decade later, in February 2025!

Coupon-mad

You should never have accepted that.

I wish you'd shown us. I could have had your PCN cancelled by the BPA within days of that bent POPLA 'decision'. I was directly referring 5 minute rule cases to the BPA's Sara Roberts in Spring 2025 and to be fair, she quickly stepped in and got some CEL ones cancelled by last Summer.

Maybe we can try that now.

Are you happy for me to contact the BPA?

It might save you a £313 fee. You should CERTAINLY NOT pay CEL.

URGENT!

What is the date of the judgment?