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    • pedarby
    • By pedarby 15th Apr 19, 11:09 AM
    • 5Posts
    • 1Thanks
    pedarby
    Please review my POPLA appeal
    • #1
    • 15th Apr 19, 11:09 AM
    Please review my POPLA appeal 15th Apr 19 at 11:09 AM
    Firstly, a huge thank you for all the help and advice provided in this forum.
    Having reviewed the NEWBIE thread, particularly post #3 regarding POPLA, I have drafted an appeal letter to POPLA.

    I would be grateful for and welcome any comments/suggestions (unable to post link as am a new member)

    Dear POPLA Adjudicator,

    PCN: XXXXX
    POPLA verification code: XXXX

    I am the registered keeper of vehicle XXXXXX and am appealing a parking charge from Britannia Parking on the following points:


    1. Grace Period: BPA Code of Practice – non-compliance
    2. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

    3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

    4. Britannia Parking lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing
    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    6. The ANPR system is unreliable and inaccurate

    7. 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
    8. Beavis V ParkingEye not relevant in this case
    9. Unreasonable and unfair terms – no contract agreed to pay £85. Fails the ‘Aziz test’.


    1. Grace Period: BPA Code of Practice – non-compliance
    The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
    BPA’s Code of Practice (13.1) states that:
    “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”
    BPA’s Code of Practice (13.2) states that:
    “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
    BPA’s Code of Practice (13.4) states that:
    “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
    BPA’s Code of Practice (18.5) states that:
    “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
    The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.
    Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
    “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.” “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
    Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”
    Finally, some 4 years ago years ago, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':
    “Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”
    The recommendation reads:
    “Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.”
    (Source: LINK REMOVED)
    This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken into account – certainly an allegation of under eleven minutes (as is the case here) is perfectly reasonable.
    As stated earlier in this section, whilst 13.4 does not apply in this case (as a contract was never entered in to), it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.
    If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions, decide not to enter into a contract and then leave the car park.
    It is therefore argued that the duration of visit in question is not an unreasonable grace period, given:
    All factors discussed above serve merely to increase the time taken to:
    • Enter the car park
    • Find a suitable parking space
    • Locate a sign containing the terms and conditions.
    • Read the full terms and conditions
    • Decipher the confusing information being presented (one example being identifying which fees apply).
    • Return to car and safely leave the car park.
    Britannia Parking on this occasion have displayed on their PCN the entry and exit times from the car park. The entry/exit times are not the ‘period of parking’ and the law requires the ‘period of parking’.
    Taking into account the time of travelling to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory grace period as outlined above.


    2. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

    This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

    The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

    ''Right to claim unpaid parking charges from keeper of vehicle:
    4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

    (a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

    *Conditions that must be met for purposes of paragraph 4:

    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.
    3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

    The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

    Understanding keeper liability
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. 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 the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


    4) Britannia Parking lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

    It is suggested that Britannia Parking does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Britannia Parking be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

    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:
    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

    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As this operator 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Page 1
    • pedarby
    • By pedarby 15th Apr 19, 11:10 AM
    • 5 Posts
    • 1 Thanks
    pedarby
    • #2
    • 15th Apr 19, 11:10 AM
    • #2
    • 15th Apr 19, 11:10 AM
    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:

    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

    6. No genuine pre-estimate of loss
    Britannia Parking have issued this PCN on the basis of having no valid free ticket for a stay of up to 30 minutes .On the basis that my stay in the Britannia car park was for a period of approximately ten minutes, the loss to Britannia Parking is nil. Therefore, there is no recoverable loss to Britannia or to the Landowner.
    The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.
    The Operator alleges 'breach of terms’ and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate.
    In this case, even if the Operator contends there was a small outstanding Pay & Display sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.
    An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.
    Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
    "[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation.
    [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do...
    [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home...
    [17] It follows that the claims must be dismissed’’

    7. The ANPR system is unreliable and inaccurate

    Britannia Parking’s evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.
    There is no proof that a ticket wasn't obtained and the car was parked. Only pictures of the vehicle from the ANPR cameras near the entrance and the entry and exit times, which were well within the 30 minutes allowed.

    Britannia Parking is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Britannia Parking to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in the case of Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from Parking Eye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.


    8. 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

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.


    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    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 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.

    8. Beavis V ParkingEye not relevant in this case

    The letter received from Debt Recovery Plus Ltd on behalf of their Client, Britannia Parking, refers to a landmark court decision made on 4th November 2015 “in favour of a parking operator who took a motorist to court for non payment of a parking charge”. They provide a link of where more information can be found. The case referred to is that of Beavis v ParkingEye.

    However, there are sufficient differences between this incident and the case referred to above and so that case cannot be taken as a precedent.

    In Beavis v ParkingEye the car park was a free car park with a limited time and ParkingEye were paying the landowner for the use of the site. In this case the time is not limited and paid for and as far as I know, the operator does not pay the landowner.

    In the Beavis v ParkingEye case it was the charge as displayed on the signs in that car park that convinced the Supreme Court Judges that a contract was formed to pay £85. For example:

    Lord Neuberger: "The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it.’’ "the terms, like all standard contracts, were presented to motorists on a take it or leave it basis ....."

    In this case, the requirement to pay £85 (see sign below) is not clear and prominent as the Supreme Court commented on in Beavis v ParkingEye. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.



    I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Beavis v Parking Eye. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist. This was not changed by the later judgment in the Supreme Court.

    This is in stark contrast to the present case where there is an economic transaction between the Operator and the motorist, and no restriction on the time of stay was made provided payment of the tariff was made.

    This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because of failure to obtain a ticket for a free period when the vehicle would otherwise have been welcome to park as it did.

    A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of Beavis v ParkingEye v the judgment in which is irrelevant in this situation.

    Any reliance on the Supreme Court judgment in the case of Beavis v ParkingEye should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility and Parking Eye as that was their only income. As previously mentioned in this situation there is no such justification as the car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site.

    9. Unreasonable and unfair terms – no contract agreed to pay £85. Fails the ‘Aziz test’.

    I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

    And as for whether average consumers 'would have agreed' to pay £85 had there been negotiations in advance, the answer here is obviously no. One could have parked for 24 hours in this car park for £7.50. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £85 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

    Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.
    • Coupon-mad
    • By Coupon-mad 15th Apr 19, 4:51 PM
    • 70,394 Posts
    • 82,985 Thanks
    Coupon-mad
    • #3
    • 15th Apr 19, 4:51 PM
    • #3
    • 15th Apr 19, 4:51 PM
    4. Britannia Parking lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing.

    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    Above are the same; remove the version that's not the one in the NEWBIES thread!

    Remove this pointless one:
    6. The ANPR system is unreliable and inaccurate
    Remove this truly ancient one, you have no hope citing the Aziz test:
    9. Unreasonable and unfair terms – no contract agreed to pay £85. Fails the ‘Aziz test’.
    This person also used the same dated version, please see what I said there and how to edit the 'Grace Period' point to make it make sense for your case:

    https://forums.moneysavingexpert.com/showthread.php?t=5990895

    You have not told POPLA, or us, how log the car was on site.

    Tell us more.

    Was this an ANPR postal PCN? Same as that person then, why are you using para 8 of the POFA? Where are people finding that awful old template, is it one I link in the NEWBIES thread? If it is I must remove it!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • The Deep
    • By The Deep 15th Apr 19, 5:38 PM
    • 12,660 Posts
    • 12,888 Thanks
    The Deep
    • #4
    • 15th Apr 19, 5:38 PM
    • #4
    • 15th Apr 19, 5:38 PM
    This is undoubtedly a scam, complain to your MP>

    On 15th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

    Until this is done you should still complain to your MP, citing the new legislation.

    http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

    Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.
    You never know how far you can go until you go too far.
    • 1505grandad
    • By 1505grandad 15th Apr 19, 6:00 PM
    • 77 Posts
    • 152 Thanks
    1505grandad
    • #5
    • 15th Apr 19, 6:00 PM
    • #5
    • 15th Apr 19, 6:00 PM
    Also in the main body listed as para #6 you have used GPEOL which is no longer applicable and should be deleted.
    • Coupon-mad
    • By Coupon-mad 15th Apr 19, 6:12 PM
    • 70,394 Posts
    • 82,985 Thanks
    Coupon-mad
    • #6
    • 15th Apr 19, 6:12 PM
    • #6
    • 15th Apr 19, 6:12 PM
    Well spotted, I wasn't expecting to see that old chestnut!

    Where are people finding that awful old template, is it one I link in the NEWBIES thread? If it is I must remove it!

    Please start again with a more recent example POPLA appeal.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Le_Kirk
    • By Le_Kirk 16th Apr 19, 9:25 AM
    • 4,621 Posts
    • 3,998 Thanks
    Le_Kirk
    • #7
    • 16th Apr 19, 9:25 AM
    • #7
    • 16th Apr 19, 9:25 AM
    I have checked all the POPLA appeals linked in the NEWBIE thread post # 3 and (unless I missed it) couldn't find GPEOL there.

    OP where did you find the link to the appeal you used please?
    • pedarby
    • By pedarby 16th Apr 19, 9:33 AM
    • 5 Posts
    • 1 Thanks
    pedarby
    • #8
    • 16th Apr 19, 9:33 AM
    • #8
    • 16th Apr 19, 9:33 AM
    Thank you for your helpful replies and feedback. Apologies if I have used some out of date information, I have pulled it together using a number of sources from the website.

    In answer to your question I was in the car park for 12 minutes and 33 seconds, from entry to exit and well within the 30 minute free period, and have mentioned that clearly at the outset of the draft.

    I did not have a parking 'permit' for this free period as it was unclear from the signage that there was a requirement to do so.

    In addition to the absence of any indication that a ticket was required for the free period, I was only in the car park for 12 minutes which from the reading I have done could arguable fall within any grace period anyway?

    I have deleted #4 - duplication regarding landowner authority

    Aziz test has also been removed.

    GPEOL removed.
    • pedarby
    • By pedarby 16th Apr 19, 11:10 AM
    • 5 Posts
    • 1 Thanks
    pedarby
    • #9
    • 16th Apr 19, 11:10 AM
    • #9
    • 16th Apr 19, 11:10 AM
    Even though I am within the 30 minute free period and also only 12 minutes in the car park so pretty much within the grace period, am I onto a loser because I didn't get the 'permit to park'

    As mentioned above there was no clear indication or signage stating that this was necessary - it was only clear that 30 minutes were free!!
    • pedarby
    • By pedarby 17th Apr 19, 10:56 AM
    • 5 Posts
    • 1 Thanks
    pedarby
    Any further thoughts would be much appreciated.

    Is this worth appealing?
    • MistyZ
    • By MistyZ 17th Apr 19, 5:15 PM
    • 464 Posts
    • 842 Thanks
    MistyZ
    Even though I am within the 30 minute free period and also only 12 minutes in the car park so pretty much within the grace period, am I onto a loser because I didn't get the 'permit to park'

    As mentioned above there was no clear indication or signage stating that this was necessary - it was only clear that 30 minutes were free!!
    Originally posted by pedarby
    I've only skimmed your POPLA appeal, but cannot find anything in the signage section which specifically refers to lack of clarity re. permit to park.

    The stock phrases you do use are very useful, but you also need the specifics of the parking event to jump out so should tweak your appeal to make it very pertinent to this case. If at all possible, get photos of the signage (from Google Earth if necessary), embed them in the appeal and make clear reference to photos that best illustrate key points.
    Last edited by MistyZ; 17-04-2019 at 5:17 PM.
    • Umkomaas
    • By Umkomaas 17th Apr 19, 7:15 PM
    • 23,080 Posts
    • 36,666 Thanks
    Umkomaas
    The letter received from Debt Recovery Plus Ltd on behalf of their Client, Britannia Parking, refers to a landmark court decision made on 4th November 2015
    I’ve not spotted anything to suggest otherwise, as you’ve given us no background to the case, but if DRP are involved aren’t you beyond the Britannia appeal period, and if so, how come you’ve got a POPLA Code?
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    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.
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