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POPLA Decisions

edited 28 October 2016 at 9:29AM in Parking Tickets, Fines & Parking
4.2K replies 904.6K views
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  • soton_25soton_25 Forumite
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    I win. NTK not compliant. No registered keeper liability main appeal point.

    Potentially fraudulent activity Premier Park in their evidence submission. I spotted it, called it out and lo and behold... they throw in the towel before the appeal is judged

    Case was transferred from WHOPLA to OS due to conflict of interest.

    http://forums.moneysavingexpert.com/showthread.php?t=5182969
  • edited 18 September 2016 at 7:47AM
    Not_ScammedNot_Scammed Forumite
    141 Posts
    Eighth Anniversary 100 Posts Name Dropper Combo Breaker
    edited 18 September 2016 at 7:47AM
    A friend fell into Parking Eye's sights recently at Welcome Break Membury-Lambourne car park on the M4.

    He asked me to help defend him against Parking Eye as I have done for him successfully against CP Plus, VCS and Euro Car Parks on a number of previous occasions. He does seem to attract PCNs from these type of companies.

    I sent the standard appeal to Parking Eye to obtain a POPLA code and then sent the appeal below to POPLA. POPLA have recently sent him an email stating that Parking Eye do not wish to contest the appeal.

    Just goes to show that if you stand up to bullies they back down - what a shame this 'industry' is allowed to continue.

    As an aside, I recently received a demand for £100 from CP Plus as one of my vehicles allegedly overstayed in a motorway service area in Scotland - obviously as it is in Scotland I will be ignoring it and all the carp from the debt collectors that will follow. I'm getting quite a nice pile of these now.

    I must admit I quite enjoy beating the bullies that infest private carparks. I've done it for myself and a couple of friends now. I know it's a numbers game and they are probably raking in so much money that the small amount I deny them is quite insignificant but it all adds up.

    Me: 11
    PPCs: 0

    Looking forward to the DR+/Zenith letter chain to drop through my letter box to claim victory number 12.




    ====================================

    Email from POPLA:

    Dear Mr X
    Thank you for submitting your parking charge Appeal to POPLA.
    An Appeal has been opened with the reference xxxxxxxxxx.
    Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.
    Yours sincerely
    POPLA Team

    ========================================================


    Email from Parking Eye

    Reference: Parking Charge Notice - xxxxxxxxxx

    Dear Sir / Madam,

    We refer to the Parking Charge incurred onxxxxx at xxxxxxx, at Welcome Break Membury-Lambourne (West) car park.

    We can confirm that this Charge has been cancelled and there is no outstanding payment due on this account.

    Kind Regards,

    ParkingEye Team
    =================================================

    Appeal Text sent to POPLA. Parking Eye Motorway Service Area POPLA Appeal.

    Re: ParkingEye PCN, reference code xxxxxxxxx
    POPLA Code:xxxxxxxxx


    I am the registered keeper of the vehicle related to the parking charge notice (reference above).
    I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.

    1) No evidence to show that a “first in, last out” has not happened
    2) No evidence to show that the APNR system is reliable.
    3) Failure of the Private Parking Company to adhere to the BPA Code of Practice
    4) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
    5) The signage was non-compliant with the BPA CoP
    6) The ANPR system is unreliable and neither synchronised nor accurate
    7) Unlawful Penalty Charge
    8) Reference to ParkingEye vs Beavis.

    1) No evidence to show that a “first in, last out” has not happened.
    ParkingEye has provided to the adjudicator photographs to support their claim of an overstay. As registered keeper I have put it to ParkingEye in my appeal to clearly show evidence that the vehicle was parked for over two hours. They have not provided this.
    I also put it to ParkingEye that the vehicle in question is a company vehicle that makes frequent, daily trips along the M4. I put it to ParkingEye to evidence that they have not photographed the vehicle entering on one visit and leaving on a second or subsequent visit. They have not provided this.
    I put it to ParkingEye that there is a petrol station at the scene, and to provide evidence that the vehicle in question may have been photographed on a second or subsequent visit to the site to use this facility. It has been shown in Altrincham County Court (Case 3JD08399) that driving around a carpark does not mean that a car is parked, and as such, an attempt levy a parking charge would not be correct. I put it to ParkingEye to provide evidence that the vehicle in question was parked for the periods claimed. They have not provided this.
    I put it to ParkingEye to show that the vehicle was parked in the car park for the duration of the alleged incident and not part parked in the parking space and part parked at the petrol station. They have not done this.

    ParkingEye has provided NO evidence to support their claim other than two photographs showing an entry and exit.I would like to bring to the adjudicator’s attention that this is a motorway services site, frequented by high-sided HGVs. It is entirely possible that during one or more of the vehicles visits to this site on the day that the APNR system used by ParkingEye simply did not record that the vehicle had left the site as the vehicle was blocked from the camera’s view by a high-sided HGV. This is entirely possible given the locations at the exit of the ANPR cameras. As the vehicle in question travels the M4 on a daily basis I put it that it is highly likely that a multiple visit has been recorded as a single stay. I outlined the possibility of this in my appeal, yet ParkingEye has chosen not to provide to the adjudicator strict evidence that the vehicle was parked for the periods claimed. I request that you uphold my appeal.They cannot show that the vehicle was parked for the duration or that a “first in, last out” has not happened. Without evidence that the vehicle was parked for the duration there can be no case.

    2) No evidence to show that the APNR system is reliable.
    This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
    ParkingEye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

    3) Failure of the Private Parking Company to adhere to the BPA Code of Practice
    In direct contravention of Clause 22.8 of the British Parking Association’s Code of Practice, to which ParkingEye must abide, states that members of the BOA must “acknowledge or reply to the challenge within 14 days of receiving it". The initial appeal was lodged on ParkingEye’s online system on 22/07/16. ParkingEye did not respond until the 16/08/16, where they rejected the initial appeal.

    4) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
    ParkingEye has not produced any evidence to show that they have any legal right to issue charges on behalf of the landowner. They have provided a witness statement but not any of the requested detail to show detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). There is also no proof that the alleged signatory on behalf of the landowner has ever seen the relevant contract or, indeed, is even an employee of the landowner. It is my contention that this witness statement should be disregarded as unreliable, not proving full BPA compliance and is not sufficient to prove that Parking Eye have the necessary legal standing at this location to bring a claim in their own name nor to form any contractual relationship between the landowner and motorists. I detailed this in Section 4 of my appeal letter, yet ParkingEye has chosen to ignore this.
    I also refer to the fact that the “old” POPLA service ALWAYS found in favour of the appellant where the PPC had not proved that they had the authority of the landowner, in accordance with Section 7 of the BPA Code of Practice. Please note that this practice included disregarding any evidence not shown to an appellant, so the operator cannot add it now for Wright Hassel to consider. The Operator has not shown a full unredacted copy of the contract that allows them to act (as detailed above).

    For clarity, the BPA Code clearly states that
    “The written authorisation must also set out:
    a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
    b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
    c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
    d who has the responsibility for putting up and maintaining signs
    e the definition of the services provided by each party to the agreement”

    ParkingEye has not provided the adjudicator any evidence to show that they have authority to issue charges in line with the BPA Code. The Operators evidence fails to show any of the BPA requirements then the omissions must be interpreted in the way which favours the consumer. I request that you uphold my appeal on this point.

    In addition, I refer to POPLA case reference 1771073004 where the assessor ruled that a witness statement was not valid. This witness statement, based on the template provided by the POPLA Lead Adjudicator, concerned evidence which could have been produced but was not. This is exactly analogous to the current case if the operator produces a witness statement regarding contract documents between he operator and the landowner; the alleged contract is a document which the operator could produce (if it exists) but chooses not to. I request therefore that the “new” POPLA is consistent with the “old” POPLA scheme in its processes and also rules any witness statement produced by the operator invalid.




    5) The signage was non-compliant with the BPA CoP
    The signage is, I believe, non-compliant. The signs are badly placed, full of overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand.

    Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

    I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

    6) The ANPR system is unreliable and neither synchronised nor accurate
    This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's ApprovedOperator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    In addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of the vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. I contend that this ANPR "evidence" from this Operator in this car park is unreliable I put this Operator to strict proof to the contrary.

    I also claim that the signs at the car park do not clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner. Unless the Operator can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

    The charge is founded entirely on two photos of the vehicle entering/leaving the car park at specific times. I put ParkingEye to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to the vehicle, not vague statements about any maintenance checks carried out at other times.

    The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue: http://www.britishparking.co.uk/How-does-ANPR-work. The BPA says: ''As with all new technology, there are issues associated with its use:
    Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

    Since I am merely the registered keeper, I have no evidence to discount the above possibilities. ParkingEye show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return.

    In addition, the BPA CoP contains the following in paragraph 21:
    ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
    ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'.



    7) Unlawful Penalty Charge
    Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow(review, February 2011), ParkingEye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

    The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

    The carpark in question is free for the first two hours and £5 for the next four hours. The £100 charge is punitive and not any representation of any loss incurred.


    8) Reference to ParkingEye vs Beavis
    The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I content it is not the assessor’s job to make the case on behalf of the operator.
    The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th they tweeted that the judgment was taking in account use of this particular car park & clear wording of the notices.
    :j
  • Final ticket which was a pending Beavis case has been won. Thanks to those who helped me out with tickets, it became a game in the end where I had enough time on my hands to do this and actually had the process streamlined and recorded in an XL spreadsheet. Were I still living there I would no longer be baiting UKCPM as they have moved to IPC. Its a sad state of affairs now (PPC's).
    The Appellant has stated in the Appeal that the signage at the car park is not adequate and that they were unaware that they would enter into a contract upon entering the car park. Upon reviewing the
    evidence provided by both parties it would appear that the signage is not adequate and does not comply with the BPA Code of Practice. Accordingly, the Appeal is allowed.

    Typically I never had a response from my rebuttal (dig it out of my threads if you're interested.) and i am actually quite surprised the appeal was allowed. Shocked in fact. Did WH finally decide not to be !!!!!!!s?
    Mike172 vs. UKCPM
    Won:20
    Lost: 0
    Pending: 0
    Times Ghosted: 15
  • UmkomaasUmkomaas Forumite
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    Mike172 wrote: »
    Final ticket which was a pending Beavis case has been won. Thanks to those who helped me out with tickets, it became a game in the end where I had enough time on my hands to do this and actually had the process streamlined and recorded in an XL spreadsheet. Were I still living there I would no longer be baiting UKCPM as they have moved to IPC. Its a sad state of affairs now (PPC's).



    Typically I never had a response from my rebuttal (dig it out of my threads if you're interested.) and i am actually quite surprised the appeal was allowed. Shocked in fact. Did WH finally decide not to be !!!!!!!s?

    Well done Mike172, what a success rate, and proving beyond doubt that on 20 occasions UKCPM had no cause to pursue you. You're quite a folk hero on this forum in my mind - kudos fella.

    I think I'd be minded to write to require the DVLA to explain why, despite having no reasonable cause on TWENTY occasions (as two separate ADR deliverers - both POPLA and WHOPLA - have confirmed), were UKCPM provided with your details by the DVLA - and why have they taken no action against them for this serial abuse of their unfettered access to the DVLA database. You have such a uniquely strong case against a single operator with 20 of their tickets all successfully defended because each was issued under a false assertion.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • Won my POPLA appeal

    Response: AM Parking Services have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

    The POPLA site says: Our Person that does POPLA appeals is backwards and forwards to Hospital at present and not in a fit state to answer to the appeal presently.
  • DollyDee_2DollyDee_2 Forumite
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    Wonder if they will get a fine at the hospital?
  • UmkomaasUmkomaas Forumite
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    tango2 wrote: »
    Won my POPLA appeal

    Response: AM Parking Services have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

    The POPLA site says: Our Person that does POPLA appeals is backwards and forwards to Hospital at present and not in a fit state to answer to the appeal presently.

    You could, if you wish, send them an invoice for the time you have had to waste in researching and drafting your POPLA appeal. £19 per hour is the litigant in person court rate. Be sensible - say 4 hours. And if you want to be particularly arsey, and if they don't respond, send them a Letter Before Claim and a Money Claim On Line in due course.

    That's the way things are going with the private parking skimdustry - so play the same game.

    Whatever you decide, well done on beating them.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • Decision : Successful

    Assessor summary of operator case
    The operator’s case is that the driver parked at the site with an invalid permit.

    Assessor summary of your case
    The appellant advises the car displayed a valid permit. The appellant states that their permit was display, but the operator’s photographic evidence of the permit suggests that the permit is partially obscured. The appellant states if the requirement of the displayed permit was that it should be fully visible, that this should have been stated. The appellant says that the charge is not commercially justifiable as the owner of the vehicle has a contact to park in the place provided. The appellant advises the car has been parked in the same manner for many weeks. The appellant disputes that the operator has the right to undertake court proceedings as it is not the landowner. The appellant states that the operator issued an identical Parking Charge Notice (PCN) prior to this PCN, which the operator cancelled.

    Assessor supporting rational for decision
    The operator has issued a PCN because the driver parked at the site without a valid permit. The appellant advises the car displayed a valid permit. The appellant states that a permit was displayed in the vehicle, but the operator’s photographic evidence of the permit suggests that the permit is partially obscured. The appellant states if the requirement of the displayed permit was that it should be fully visible, that this should have been stated. The appellant says that the charge is not commercially justifiable as the owner of the vehicle has a contract to park in the space provided. The appellant advises the car has been parked in the same manner for many weeks. The appellant disputes that the operator has the right to undertake court proceedings as it is not the landowner. The appellant states that the operator issued an identical PCN prior to this PCN, which the operator cancelled. After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle in question at the time of the relevant parking event. From the case file I can see that a notice to driver was issued on 5 June 2016. The appellant submitted an appeal on 29 June, the appeal made does not detail who the driver was, and does not identify the appellant as the registered keeper. The operator issued a notice of rejection addressed to Sir/Madam, on 7 July. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that it the appellant is the driver and therefore liable for the charge. As I cannot confirm if the PCN has been issued correctly, the appeal must be allowed.




    Oddly, not being the driver was never raised as a defence point! This was approximately the submission:

    1. Parking Tickets Limited have acted in a misleading fashion in sending their evidence pack to me with a covering email which states that “This email is for information only, you do not need to take further action.” Clearly, the purpose of sending the information is that it can be checked and any problems with the evidence can be addressed.

    2. It is the vehicle owner’s contention that no valid contract exists between PTL and the owner. No evidence has been submitted to show a clear trail of the contract. A sign displayed cannot override a pre-existing contract of an authorised user of the car park. This has been raised previously and PTL have not refuted this, simply restating that they claim to create a contract by the display of signs. PTL admit in their evidence that they have no contract with the leaseholder and only have a contract with the landowner who has given a lease for the parking space and they cannot override the leaseholder’s entitlement to freely use their space as they wish within the terms of their lease which contains no conditions on display of permits. Clearly the leasehold predates any contract that PTL have. PTL have not even provided evidence that their contract was in force on the date of the alleged infraction.

    3. As evidenced by their enclosed contract terms and conditions, PTL have no authority to issue tickets to authorised users of the car park, their contract states clearly in their terms and conditions at 2.1 “To issue parking charge notices to unauthorised or illegally parked vehicles”. As PTL do not dispute that the car is authorised (“Whilst we appreciate that the motorist is a permit holder”), they do not have contractual authority to issue charge notices against authorised vehicles. There is no suggestion that the car is illegally parked (whatever that might mean in a private car park).

    4. Clearly, although they have issued a ticket for “Invalid permit” PTL in their response have accepted that it is actually a valid permit, and have offered no evidence that the permit (partially displayed in their view) is in someway forged or invalid. Therefore their invoice that they have raised is clearly incorrect and should be cancelled.

    5. The contract terms do not give permission for PTL to issue legal proceedings on behalf of the landowner. They have no standing to take legal action.

    6. In issuing permits, PTL and the landowners clearly have the ability to create a binding contracts with car park users where all parties have the opportunity to review and negotiate terms, including the refusal to accept onerous terms and finding somewhere else to park. In avoiding this opportunity and trying to simply create an onerous contract on the consumer by the use of signs, PTL are acting unreasonably - PTL have avoided the opportunity to have a meeting of minds necessary to create a legal contract.

    7. PTL make much of Beavis case. PTL are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the deliberate abuse of a free time limited public car park where signage could be used to create a contract. In this case, we have an authorised user using the car park appropriately, there has been no loss to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that a £100 fine is a conscionable amount to be charged for the simple problem of a permit that is agreed to be valid not being entirely visible to the satisfaction of a parking warden. Therefore, in this case GPEOL should still apply and any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Unfair Terms in Consumer Contracts Regulations 1999, the fundamental question is always whether the terms are fair, and in this case the specific question is whether a reasonable person would agree to a term where parking in a place that they paid a significant rent for the privilege would also accept a further liability in the case of a potentially misplaced permit, I would suggest that a court would not accept that £100 was a reasonable amount (as opposed to a charge for the circumstances where a genuinely unauthorised vehicle was using the same land and could be bound by appropriately signed conditions) and certainly does not in anyway reflect the costs incurred in establishing that the car was indeed authorised.

    8. It is usually held that a parking contract is established by the action of the driver of a car having the opportunity on entering the car park having their attention drawn to the parking terms and conditions and the action of them parking is a de facto acceptance of the terms and conditions as they have the alternative of rejecting the terms and finding somewhere else to park. Where someone has been authorised to park in the car park attached to their home where they have entered into a contract to facilitate the parking of their car with another party, it is clear that they will park their regardless of writing on the signs and will not consider that the action of parking in a car park is accepting the terms of an arbitrary notice which they perceive is simply intended for the miscreants who abuse the private parking area. Therefore, it is unreasonable to suggest that the mere action of parking in one’s own space creates the acceptance of a contract based on signs.

    9. PTL suggest that putting a customer service number on the sign provided some form of remedy. As the owner is not a customer of PTL, then it begs the question of what relevance a customer service number is to the owner.

    10. Note that picture F2 makes it abundantly clear that the warden was able to find the permit easily, therefore it was clearly displayed. I repeat that there is no suggestion on the signage of what features or portion of the permit need to be visible to comply with their arbitrary terms and conditions.

    I was trying to decide whether this was standard POPLA oddities or I raised a can of worms in a couple of places (e.g. is there acceptance of contract when parking in your alloted space).
  • edited 17 November 2016 at 1:45AM
    Coupon-madCoupon-mad
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    edited 17 November 2016 at 1:45AM
    Great result! POPLA Assessors seem to have had some top-up training on 'being sure the appellant is actually the person liable' but fancy them finding that even though you didn't raise it. Nice.

    I also liked this argument (below) - a great explanation and an example of how to show POPLA that in THIS sort of permit case, where the person is clearly authorised, GPEOL and the penalty rule are certainly still arguable factors even after the Beavis case.

    So we have a template POPLA point for others to use in permit cases (all I have done is anonymise the PPC and remove the word 'deliberate' because I can't say that about Barry B - because it wasn't. Oh and I've changed the UTCCRs to the CRA 2015).

    Hat tip to IanMSpencer, hope this is OK with you:


    :T

    This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis

    The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.

    In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

    At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

    This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

    http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

    - Schedule 2: 'Consumer contract terms which may be regarded as unfair':
    ’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
    ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''


    This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

    In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.



    EDIT - now adding another extra point in November 2016 (to be used with the above one) using the Jopson Appeal case:


    This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

    In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

    There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

    These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

    This question was tested recently in an Appeal case in June 2016 (transcript attached as evidence for POPLA*). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

    Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

    Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

    Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

    I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

    District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''


    Download the transcripts here, then upload them to POPLA when uploading your appeal as a PDF under 'OTHER';

    *https://bmpa.zendesk.com/hc/en-us/articles/213077149-Milton-Keynes-woman-secures-landmark-victory-for-flat-tenants-in-parking-dispute

    ** http://parking-prankster.blogspot.co.uk/2016/11/tenancy-agreement-not-overruled-by.html

    DO NOT JUST GIVE POPLA THOSE LINKS! GO TO THE PAGES AND DOWNLOAD THE JUDGMENTS THEN SAVE THEM ON YOUR PC, THEN UPLOAD THEM WITH YOUR APPEAL AS EVIDENCE.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • edited 22 September 2016 at 9:30AM
    IanMSpencerIanMSpencer Forumite
    1.5K Posts
    edited 22 September 2016 at 9:30AM
    Coupon-mad wrote: »
    Great result! POPLA Assessors seem to have had some top-up training on 'being sure the appellant is actually the person liable' but fancy them finding that even though you didn't raise it. Nice.

    I also liked this argument (below) - a great explanation and an example of how to show POPLA that in THIS sort of permit case, where the person is clearly authorised, GPEOL and the penalty rule are certainly still arguable factors even after the Beavis case.

    So we have a template POPLA point for others to use in permit cases (all I have done is anonymise the PPC and remove the word 'deliberate' because I can't say that about Barry B - because it wasn't. Oh and I've changed the UTCCRs to the CRA 2015).

    Hat tip to IanMSpencer, hope this is OK with you:


    :T

    I'll take any compliments going thank you.

    This was a rescue involving dumpster surfing after angry text from daughter who was going to write angry letters. No written contract,which in this case I reckon it's an advantage as it established no terms on her.

    I'd be interested on whether you think the signs can't create a contract by performance if you already believe you have the right to park there. You believe you have a contract to park, so why would a reasonable person look at signs or consider that parking in your space constituted an acceptance of the offered contract on a sign?


    My suspicion is that this one might have raised alarm bells and been kicked upstairs to a competent person who wanted to avoid a judgement on those two interesting points, or is that too cynical?
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