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PCN for non display of permit in employee car park
EssDotEnn
post Fri, 16 Nov 2018 - 16:50
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Hi all,

Looking for some assistance where the driver of a car was not displaying a permit (had fallen from dashboard) and has been issued a PCN. A few points outlining the situation below

- The car park is accessed by tapping company ID at the entrance which opens the barrier - by default the driver is an authorised user of the car park surely?
- The car is registered with the site manager, (who is not willing to help)
- First 'offence' since joining the company almost a year ago.
- Email appeal covering the above points and a photo of the permit rejected, looks like a standard response stating no valid permit...now to POPLA I think...

I've seen the various POPLA appeal templates, however signage was fine and I guess they would argue that the driver was aware of the permit requirements as they have been displaying it previously.

With that in mind, I guess the question is - is it still worth a POPLA appeal? if so what would be the suggested content? Would the template 1. Signage, 2. Landowner contract, 3. Pre-estimate of loss (and maybe 4. Authorised user as above) work?

Any thoughts welcomed. Thanks in advance. Seems crazy to be fined while at work in the office car park!
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post Fri, 16 Nov 2018 - 16:50
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Jlc
post Fri, 16 Nov 2018 - 17:40
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Which parking company?

POPLA may well conclude the charge was ‘issued correctly’ - definitely don’t mention genuine pre-estimate of loss!

This post has been edited by Jlc: Fri, 16 Nov 2018 - 20:20


--------------------
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, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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EssDotEnn
post Fri, 16 Nov 2018 - 19:14
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PPS Ltd

Why not mention about loss? Isn't it just to emphasize that it's a free car park so the charge is not proportionate?

Thanks
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The Rookie
post Fri, 16 Nov 2018 - 19:39
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No, the Beavis case which killed off loss as a POPLA appeal point was a free car park. It’s a valid defence for court, it’s meaningless for POPLA.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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SchoolRunMum
post Fri, 16 Nov 2018 - 20:19
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As you mention POPLA, do you mean the BPA member called PPS (London) Ltd?

'PPS Ltd' are not in the BPA and there is no POPLA with an IPC firm.
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EssDotEnn
post Fri, 16 Nov 2018 - 21:00
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Yes that's correct. Apologies I should have been clearer. PPS (London) Ltd. Any thoughts? Thanks.
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SchoolRunMum
post Fri, 16 Nov 2018 - 21:24
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There are plenty of POPLA examples of appeal points in the 3rd post of the MSE NEWBIES thread:

https://forums.moneysavingexpert.com/showth...d.php?t=4816822

And as long as the driver has never been admitted, start with a point (seen on lots of POPLA appeals on both forums - read some as research!) saying there can be no keeper liability under the POFA because PPS (London) Ltd do not comply with the Act and have not issued a Notice to Keeper, at all.
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EssDotEnn
post Fri, 16 Nov 2018 - 21:32
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Hmm ok thanks. I may have disclosed the driver already :-(

I appealed using my work email address stating I parked and I am an employee. Kinda hoped common sense / goodwill would prevail... Is it still worth going to POPLA?
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nosferatu1001
post Mon, 19 Nov 2018 - 07:41
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Yes, of course it is
You were told it is just the FIRST appeal point, not the whole appeal!

As a general rule there is no such thing as "common sense" with PPCs. Their business model is parasitical and if they dont tyr it on, they get no income.
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EssDotEnn
post Mon, 19 Nov 2018 - 20:45
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Cheers. Will get something drafted in the next few days.
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EssDotEnn
post Tue, 20 Nov 2018 - 16:50
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Does something like this look ok...

I have been issued a charge notice from Private Parking Solutions (London Ltd) (PPS) demanding payment of a charge of £60 (increasing to £100 and then £160) for an alleged parking contravention. I would like to appeal this notice on the following grounds:
1 Signage
2 Lack of the PPC's proprietary interest in the land and no contract with the landowner
3 Permission to park has been granted to the driver

1 Signage. The BPA Code of Practice states: 18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.” There was no contract between the driver and PPS. The driver did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied.

2. Lack of the PPC's proprietary interest in the land and no contract with the landowner. I believe that PPS have no proprietary interest in the land to issue charges and pursue them in their own name, including at court level. If they do have such interest then I put them to provide POPLA with the Deeds of Title in the land. In the absence of such title, PPS must have contractual authority from the landowner to issue and pursue charges. I do not believe such a document is in existence. I therefore put PPS to strict proof to provide POPLA with an unredacted, contemporaneous copy of the contract between them and the landowner which provides them with the authority to issue and pursue charges, including to pursue them at court in their own name. Please note that a 'Witness Statement' to the effect that a contract is in place between PPS and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

3.The car park is for [Company name] employees for which access is granted by tapping an authorised company ID and 4 digit PIN which raises a barrier for entry, thereby the driver by default is an authorised user of the staff car park. By virtue of registering the vehicle to the onsite facilities manager and being authorised to enter the car park, I suggest this overrides any 'contract' PPS claim to have entered with the driver.

Anything I've missed, comments welcomed. Do I need to say anything about the permit falling off the dashboard on that day Thanks.
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GooseOnTheLoose
post Wed, 21 Nov 2018 - 09:51
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I had success with a similar case recently, have a look at my thread as it may give you some ideas, but keep in mind that you cannot use the no keeper liability part if you have admitted to being the driver.

http://forums.pepipoo.com/index.php?showtopic=122801Visit My Website://http://forums.pepipoo.com/index.php...isit My Website
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EssDotEnn
post Wed, 21 Nov 2018 - 17:39
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Thanks for that, really useful - will have a proper read this evening biggrin.gif
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Churchmouse
post Wed, 21 Nov 2018 - 20:10
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QUOTE (EssDotEnn @ Tue, 20 Nov 2018 - 16:50) *
3.The car park is for [Company name] employees for which access is granted by tapping an authorised company ID and 4 digit PIN which raises a barrier for entry, thereby the driver by default is an authorised user of the staff car park. By virtue of registering the vehicle to the onsite facilities manager and being authorised to enter the car park, I suggest this overrides any 'contract' PPS claim to have entered with the driver.

No guarantee that a judge will see it the same way, but I would suggest that it is not only that the driver had been "authorised" (which would need to be proved--does the driver have a letter confirming this?), but that such authorisation and associated procedures (tapping in, entering PIN) would have meant that no reasonable driver would ALSO have voluntarily entered into a punitive, one-sided contract with a rapacious, parasitic private parking company... (Did I go too far there?) The point being that there would have been no consideration (the driver already had the right to park, so the PPC offered nothing), no intention to enter into legal relations (the driver would have had little reason to engage with the PPC at all), and no unambiguous acceptance of the offered terms (the act of parking was more likely the driver's acceptance of the authorising party's terms and conditions, not the PPC's).

So, authorisation is one point. No contract is another (but related) point.

--Churchmouse
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SchoolRunMum
post Wed, 21 Nov 2018 - 21:08
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QUOTE (EssDotEnn @ Tue, 20 Nov 2018 - 17:50) *
Does something like this look ok...

I have been issued a charge notice from Private Parking Solutions (London Ltd) (PPS) demanding payment of a charge of £60 (increasing to £100 and then £160) for an alleged parking contravention. I would like to appeal this notice on the following grounds:
1 Signage
2 Lack of the PPC's proprietary interest in the land and no contract with the landowner
3 Permission to park has been granted to the driver

1 Signage. The BPA Code of Practice states: 18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.” There was no contract between the driver and PPS. The driver did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied.

2. Lack of the PPC's proprietary interest in the land and no contract with the landowner. I believe that PPS have no proprietary interest in the land to issue charges and pursue them in their own name, including at court level. If they do have such interest then I put them to provide POPLA with the Deeds of Title in the land. In the absence of such title, PPS must have contractual authority from the landowner to issue and pursue charges. I do not believe such a document is in existence. I therefore put PPS to strict proof to provide POPLA with an unredacted, contemporaneous copy of the contract between them and the landowner which provides them with the authority to issue and pursue charges, including to pursue them at court in their own name. Please note that a 'Witness Statement' to the effect that a contract is in place between PPS and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

3.The car park is for [Company name] employees for which access is granted by tapping an authorised company ID and 4 digit PIN which raises a barrier for entry, thereby the driver by default is an authorised user of the staff car park. By virtue of registering the vehicle to the onsite facilities manager and being authorised to enter the car park, I suggest this overrides any 'contract' PPS claim to have entered with the driver.

Anything I've missed, comments welcomed. Do I need to say anything about the permit falling off the dashboard on that day Thanks.


Far too short, please look again at the POPLA appeals I pointed you to read.
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EssDotEnn
post Fri, 23 Nov 2018 - 11:29
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Thanks all for the comments, will post a revised draft later today hopefully. Appreciate your help.
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EssDotEnn
post Fri, 23 Nov 2018 - 14:17
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Revised appeal draft below, will sort formatting prior to final submission. Thanks in advance for any feedback smile.gif

I have been issued a charge notice from Private Parking Solutions (London Ltd) (PPS) requiring payment of a charge of £60 (increasing to £100 and then £160) for an alleged parking contravention. I would like to appeal this notice on the following grounds:

1. Signage
2. Lack of the PPC's proprietary interest in the land and no contract with the landowner
3. Permission to park has been granted to the driver

1. Signage - The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

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

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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:

http://imgur.com/a/AkMCN

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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbC...%2Bsign_001.jpg

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.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

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.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/t...s/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-l...lity-chart.aspx

''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.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensio...75068392/g.html

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

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I 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.

2. 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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

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

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

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

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

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


3. Driver is permitted to park
The car park is for [Company name] Employees and access is granted by tapping company ID and input of a 4 digit PIN, which the driver possesses thereby by default is an authorised user of the staff car park. By virtue of registering the vehicle with the site facilities manager as required and being authorised to enter the car park, I suggest that the procedures required for access to the car park would have meant that no reasonable driver would ALSO have voluntarily entered into a contract with PPS. There would have been no consideration of a contract (the driver already had the right to park, so PPS offered nothing), no intention to enter into legal relations (the driver would have had little reason to engage with the PPS at all), and no unambiguous acceptance of the offered terms (the act of parking was more likely the driver's acceptance of the authorising party's terms and conditions, not the PPS's).

I would add that PPS have not even established that an alleged parking contravention occurred. Having reviewed the images taken by PPS of the vehicle, I note that the angles do not offer full coverage of the dashboard, in particular of the offside therefore it can be not be established with certainty that a permit was not displayed.

Furthermore, 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/2015/1...edule/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

In addition to the above, 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.

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

Having considered the above points, I would request that POPLA uphold my appeal and cancel this PCN.
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GooseOnTheLoose
post Fri, 23 Nov 2018 - 16:33
Post #18


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Do you have pictures of the signs in question to prove your point? If you are claiming they are inadequate, you should be providing examples of the signs to prove your point.

As an additional bonus, it might also be the case that they are forbidding - "parking for permit holders only" or similar wording. You should take a picture of them and provide it, as it may give you another appeal point.
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EssDotEnn
post Mon, 26 Nov 2018 - 14:45
Post #19


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imgur.com/a/48cRzjM

Can't seem to embed the image but hopefully the link works...

Is the sign 'forbidding'?
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Redivi
post Mon, 26 Nov 2018 - 14:49
Post #20


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The link doesn't work
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