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Help With POPLA Appeal Please
Rellik
post Tue, 12 Sep 2017 - 11:23
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This is regarding a Horizon postal PCNN for a stay in the car park of a supermarket that they manage. Identifying details have been removed or made unidentifiable, however if any clarifications are needed please let me know.

There was no notice on the day of parking. Here is the postal PCNN:



The Notice Issue Date is 9 days after the date of parking

The Exit Time is more than 1 hour, but less than 2 hours, after the Entry Time.

Here is the rear of the PCNN:



Here is the sign on entry to the car park:



And here is the sign near the bays:




An email appeal was sent to Horizon within 14 days of the notice. The pertinent points in the appeal were:

- The driver was a customer of the supermarket and as such did not overstay the 2 hour limit

A reply to this appeal was received from Horizon asking for a receipt or credit card statement

A reply to this stated:

- The driver paid in cash and as such does not have a supporting credit card statement. The receipt was not kept as no need was clear at the time.

The reply to this stated that the appeal was not accepted, and included links to make a POPLA appeal online or that postal docs may be requested from them.


I would appreciate advice on what to include on a POPLA appeal.

Thank you.

This post has been edited by Rellik: Tue, 12 Sep 2017 - 11:25
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post Tue, 12 Sep 2017 - 11:23
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Jlc
post Tue, 12 Sep 2017 - 11:28
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I'm confused - the driver stayed less than the 2 hour limit? Why was the PCN issued?

Does the notice claim 'keeper liability'?

(Note than pictures aren't loaded yet - see here)

This post has been edited by Jlc: Tue, 12 Sep 2017 - 11:29


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Tue, 12 Sep 2017 - 12:48
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JLC - no doubt the driver didnt scan their receipt at the pay machines

Neither sign state s any amount is payable. So where are THOSE signs? there must be some.....

As it stands, you have a sign saying 2 hours max, see signs. A sign then tells you what tro do, so you can easily argue that the driver never saw any other sign and while they didnt abide by the conditions of term 2, there was no contract offered, and no amount made prominent to pay for the privilege of the contract.
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Rellik
post Tue, 12 Sep 2017 - 12:51
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The images are displaying perfectly for me. Could someone else confirm whether they are missing for them?
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nosferatu1001
post Tue, 12 Sep 2017 - 13:06
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They work fine for me, hence the comments.
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Jlc
post Tue, 12 Sep 2017 - 13:14
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QUOTE (Rellik @ Tue, 12 Sep 2017 - 13:51) *
The images are displaying perfectly for me. Could someone else confirm whether they are missing for them?

Yes, works for me (now).

They do not appear to be invoking keeper liability - so the basis of the appeal will be that they've written to the keeper without invoking (or complying) with the Protections of Freedoms Act so the keeper cannot be automatically liable.

This post has been edited by Jlc: Tue, 12 Sep 2017 - 13:27


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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Rellik
post Tue, 12 Sep 2017 - 14:52
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Thanks for that. Is there a template appeal for this situation?

No charge amount is stated on any sign in the car park.
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Jlc
post Tue, 12 Sep 2017 - 15:18
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QUOTE (Rellik @ Tue, 12 Sep 2017 - 15:52) *
Is there a template appeal for this situation?

We don't tend to recommend templates as you need to do a little work to understand what you are writing. Pull together an appeal for critique here.

QUOTE (Rellik @ Tue, 12 Sep 2017 - 15:52) *
No charge amount is stated on any sign in the car park.

If this is true then there's no way a contract could be formed with the driver! But the appeal should work in a logical fashion with the strongest points first.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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hexaflexagon
post Wed, 13 Sep 2017 - 00:31
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When you get the POPLA Code I'd write mentioning the following - obviously flesh it out in your own words and then post here for comments

1. There is no presumption in law that the keeper was the driver. (Google for the POPLA precedent on that where it has been explicitly stated) and that since Horizon have chosen not to use POFA they can't pursue the RK and you have no duty to do so.

2. Say in any case the PCN photos clearly show the car was parked for less than 2 hours and attach a copy of the yellow sign and the PCN

It would be useful to know what the T&C's mentioned on the yellow sign say and where they are posted. i.e. are they in the car park (rather than in store) since that's what the sign say and are they readily visible. If they are only on a pay station then you can argue that's irrelevant and the driver had no need or duty to visit the pay station since they were shopping at the store for over 2 hours and spending £5+ and therefore had no need to consider making a physical payment.

3. The signs are confusing and the blue sign has no company references, address, contact numbers or shows in any way which organisation or company is attempting to set out rules for parking.

If the driver had by any chance used an in store franchise outlet, like say Timpsons which hadn't issued a 'checkout voucher then there's an argument that the absence of a voucher frustrated any contract term to scan a voucher- (bit of a convoluted long shot that but may just be relevant).
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Rellik
post Thu, 14 Sep 2017 - 10:15
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Apologies. On return it seems there is a more detailed sign. The driver is used to checking for signs at the entrance and at bays. This sign was at the entrance to the actual supermarket.



Assuming everything is alright with this sign, it seems the main argument is POFA / Pursuit of RK. Where can i read more about this? When I asked about a template I had not intended to use it verbatim, but rather to paraphrase it so that i am including the key points but in my own words.

Re Hexa's other points:

2) Am i right in thinking that the most recently posted sign mean they have a valid argument re the 1 hour limit? I believe the new sign answers the other questions you raised in regards to this

3) I believe the new sign includes the stated details


The driver had used the main supermarket, paying in cash and not receiving a voucher, however i believe the onus in on the shopper to request one?


Apologies again for missing the new sign initially.
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nosferatu1001
post Thu, 14 Sep 2017 - 11:01
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No, as pointed out - that alone isnt sufficient.
You MUST still include unclear signage. TWO signs never mention the parking charge, only ONE does and that is well after you have left the car and would no longer be looking for signs, and even then the charge is relatively small.
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Rellik
post Thu, 14 Sep 2017 - 11:48
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Thank you, i will put something together based on the template i have found on MSE and post it here for criticism.
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hexaflexagon
post Thu, 14 Sep 2017 - 12:24
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QUOTE (Rellik @ Thu, 14 Sep 2017 - 11:15) *
Apologies. On return it seems there is a more detailed sign. The driver is used to checking for signs at the entrance and at bays. This sign was at the entrance to the actual supermarket.



Assuming everything is alright with this sign, it seems the main argument is POFA / Pursuit of RK. Where can i read more about this? When I asked about a template I had not intended to use it verbatim, but rather to paraphrase it so that i am including the key points but in my own words.

Re Hexa's other points:

2) Am i right in thinking that the most recently posted sign mean they have a valid argument re the 1 hour limit? I believe the new sign answers the other questions you raised in regards to this

3) I believe the new sign includes the stated details


The driver had used the main supermarket, paying in cash and not receiving a voucher, however i believe the onus in on the shopper to request one?


Apologies again for missing the new sign initially.


It's unfortunate that the flash of the camera blots out some of the words on that last picture but I'm assuming it says that parking is free if £5 is spent in store.
However the words on the various signs are contradictory. The last picture says validate a car park voucher. The blue sign earlier in the thread says scan a checkout voucher.

What are we to understand by all that?

Including evidence of confusing signs is always useful.

This post has been edited by hexaflexagon: Thu, 14 Sep 2017 - 12:25
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Rellik
post Fri, 15 Sep 2017 - 10:00
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I'm in the process of writing a draft, but i would appreciate some advice on which part of POFA this notice doesn't conform to.

Thanks
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ostell
post Fri, 15 Sep 2017 - 10:21
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Here is POFA. Look at paragraph 9. All that is in there is required to be in the NTK to create keeper liability. They have said that the driver is liable, no mention of keeper liability. They missed 9 (2) (f) completely.
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Rellik
post Fri, 15 Sep 2017 - 10:35
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Thank you.

Here's my first draft then:

QUOTE
POPLA reference number xxxxxxxxxxx
Horizon Parking PCN no xxxxxxxxxxxxx
This appeal is in relation to a Parking Charge Notice sent to me, the registered keeper of vehicle reg. no. xxxx xxx, by Horizon Parking for the alleged contravention of ‘Failure to Pay / Validation for the Duration of Stay’. It should be noted that the stated duration of stay is 1hr XXm. I wish to appeal this notice for the following reasons:

1) Non-compliance with POFA 2012

2) Misleading and/or unclear signage

3) No evidence of ownership or legal basis to form contracts to charge for parking

4) The amount demanded is a penalty

1) The PCN sent to me by Horizon Parking was delivered by post using ANPR and a subsequent request to the DVLA for Registered Keeper details. No notice was given at the time of the alleged contravention. As such, the notice should conform to Schedule 4 of the Protection of Freedoms Act 2012. I would draw particular notice to paragraph 9 (2 (f))

(2)The notice must—

(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;


The notice from Horizon Parking does not meet this requirement by stating what action will be applicable if the creditor does not know the name and address of the driver.


2) There are three different signs present at the car park that Horizon are presumably relying upon to form a contract with drivers. The sign at the entrance to the car park states:

“Camera Controlled Parking with a 2 Hour Restriction”

This statement is followed by a reference to terms and conditions that can be viewed on another sign. The text referencing the terms and conditions is significantly smaller than the offer of a 2 hour free stay. The PCN was issued for a stay of less than two hours in the car park, and I would suggest that this sign would give the driver an understandable impression that a stay of two hours or less is allowed. In addition, the sign makes no mention of the fact that charges are purported to be imposable, the amount of these charges, or that there are any separate requirements for a stay of between one and two hours. As such, the sign which would be most capable of forming any contract with a driver upon entry, specifically allows a stay of the length in question.

(picture of sign)

Signs are also present at some of the rows of parking bays in the car park. These signs state:

“Up to 1 hour free parking

Spend £5 in store for 2 hours free parking
Please scan your checkout voucher at the pay station before you leave”


These signs offer a different period of free parking than stated on the sign at the entrance to the car park.

(Picture of bay sign)

A third sign is located on the external wall of the supermarket. This sign states:

“Up to 2 hours…free for customers spending £5 or more within Sainsbury’s”


This is entirely different to the instructions on the signs located near parking bays, which state a requirement to scan a checkout voucher. It would be reasonable for a driver to form an opinion based on the entrance sign, that a stay of up to 2 hours is allowed with no requirements. It would also be reasonable for a driver to form an opinion based on the wall sign that a stay of up to 2 hours is allowed by simply spending £5 or more in store, with no requirement for a voucher to be scanned.

(Picture of wall sign)

As such, the signage is confusing and contradictory, and is not fit to form a coherent contract with the driver.


3) Horizon Parking offers no evidence of ownership of the land or specifics of a contract with the landowner which would give a legal basis to form a contract with drivers for the levying of charges. I would refer to the precedents formed in Vehicle Control Services vs. HMRC, which ruled against these kinds of business practices. Should Horizon choose to contest this appeal I challenge them to prove that the contract held with the landowner entitles them in law to form a contract with third parties parking on the land.


4) A charge of £60 for a stay of around 1.5 hours in a car park is clearly punitive, especially considering that on one of the signs at the location, it is stated that the standard charge is £2 for this period of stay. The fact that the £60 charge is only stated on one of the signs, that being the least visible to a driver entering or parking in the car park, makes the signage unclear on this particularly pertinent issue.

In light of these points, I request POPLA to uphold my appeal and cancel this PCN.


This post has been edited by Rellik: Fri, 15 Sep 2017 - 10:46
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ostell
post Fri, 15 Sep 2017 - 10:48
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POFA -
no period of parking 9 (2) (a) Time moving between cameras is not parking.
no creditor identified 9 (2) (h)

There is a portion of consumer law that states that in the case of dispute the most advantageous terms to the consumer must be taken.

This post has been edited by ostell: Fri, 15 Sep 2017 - 10:48
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Rellik
post Fri, 15 Sep 2017 - 10:51
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QUOTE (ostell @ Fri, 15 Sep 2017 - 11:48) *
There is a portion of consumer law that states that in the case of dispute the most advantageous terms to the consumer must be taken.



That seems highly relevant. Do you have a reference?
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ostell
post Fri, 15 Sep 2017 - 11:08
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CRA 2015 section 69
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hexaflexagon
post Fri, 15 Sep 2017 - 12:00
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Re the signs.

You need to extend the
QUOTE
"A third sign is located on the external wall of the supermarket. This sign states:

“Up to 2 hours…free for customers spending £5 or more within Sainsbury’s”


You need to make it quite clear where the wording is different. The sign on the car park says to scan a checkout voucher, the sign on the wall says to 'validate a car park voucher'
The words scan and validate are not consistent and neither is a checkout voucher and a car park voucher.
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