Popla Fail - Private Parking Solutions - Should I pay advice |
Popla Fail - Private Parking Solutions - Should I pay advice |
Mon, 8 Aug 2022 - 10:16
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#1
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Member Group: Members Posts: 10 Joined: 25 Oct 2021 Member No.: 114,511 |
Hi,
I'm hoping someone could offer some help. I appealed to Polpa using modified templates I found on another forum. Polpa have rejected it but I think they made some errors or assumptions that are critical to the appeal. They also seem very keen to take everything supplied to them by PPS 'in good faith' - including a google street view image of a sign. I'll try to keep it as short as possible. The car entered the car park drove round, stopped for 3-4 mins then drove off. No one got out of the car or switched the engine off. PPS are claiming that by stopping, benefit was gained from the car park. There are signs dotted around the car park - like the one attached. My appeal centred on the fact the entrance signs, warning you are entering a private car park, are almost impossible to see when you drive in. Then appropriate time was not given to read the sign before deciding whether to park. I understand that the signs on the site say 'No parking at any time'. Is that clear enough for the car to move on and time given to read it? Or should time be given to read the whole sign? Like i said, the car was stationary for 3-4 mins. The hard to see entrance sign says 'Permit Holders Only - see notices on site for details' which, I think, encourages you to read the full sign on site. In Polpa's rejection they acknowledge that I have said the entrance signs are incredibly hard to see but they just say they are clearly visible. If you stand with a camera facing it yes, but not when you're driving. Attached is the position of the entrance sign and the direction of travel you approach it from. As you can see its facing completely away from you and is about 6ft off the ground so you completely miss it when you come in Here is the car where it was stopped. Any advice would be greatly appreciated. Thanks This post has been edited by itsgonewrong: Mon, 8 Aug 2022 - 10:21 |
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Mon, 8 Aug 2022 - 10:16
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Mon, 8 Aug 2022 - 10:56
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#2
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Member Group: Members Posts: 35,159 Joined: 2 Aug 2008 From: Woking Member No.: 21,551 |
Polpa have rejected it but I think they made some errors or assumptions that are critical to the appeal. OP, sorry to say this: so what! You've been there. You lost. The ball is in the PPC's court, so to speak. They'll either pursue you, procedurally and/or extra-procedurally, or not. In the meantime, post your 'appeal' and the decision. Just out of interest, 'No one got out of the car.'. Then frankly all your thoughts about signs within the site are irrelevant: they're not designed to be read by a driver sitting in a car, the driver has to get out. Whereas the 'heads-up' sign at the entrance IS designed to be read from within a car, which is why it carries far less detail and simply conveys that there are parking controls on the site, implying that a driver has to enter and read these in order to discover the Ts and Cs before deciding whether to stay. |
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Mon, 8 Aug 2022 - 11:38
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#3
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Member Group: Members Posts: 10 Joined: 25 Oct 2021 Member No.: 114,511 |
Hi hcandrsen, thanks for the reply
Understand that Popla is a lost cause now. I am at the point where I either pay the fine or go to court but obviously don't want to go to court if there's no chance of winning. Further to you points about the signs At what point would one be able to read the sign? Popla state in their decision that: Further, paragraph 13.4 also makes it clear that unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period. As the site is not one where general parking is permitted, the driver is not entitled to a 5 minute consideration period. How would one go about reading the sign to decide whether to park there if no time is given to read the sign. Do you have to be seen to actively park, get out of the car, read the sign and leave? Here is the Popla refused appeal Operator Name Private Parking Solution (London) - EW Operator Case Summary Dear Assessor, The contract formed when parking is between the motorist and the operator through the terms and conditions set out on the signage. The signage at the location in question is clearly located to make motorists aware of the terms and conditions and the potential consequences of non-adherence to the terms have been made fully available "No parking at any time. Private land, strictly no parking at any time, unauthorised parking will result in the issue of a £100 parking charge notice." The charge was issued because the appellant's vehicle was parked in enforcement zone in strictly no parking at any time area, which is a direct contravention of the advertised on the signage terms and conditions of parking. The appellant explains that the car entered the car park, stopped for 2-3 minutes, and then drove off. They say that at no point did the driver exit the car or turn the engine off. As the vehicle has come to a halt for the purpose of stopping, parking, or waiting, it is therefore no longer in motion and is considered to be parked. Even if the driver is still in the vehicle with the engine switched on, or not parked within a bay this is considered to be stopped, parked, or waiting and gaining utility from the site and the motorist is subject to the terms and conditions. The onsite images show that the appellant's vehicle remained stationary for at least 3 minutes within close proximity to warning sign, indicating in large bold letters that parking was not permitted at any time. The signage is clear that parking within a no parking area, regardless of the reason, would result in the issue of a parking charge. A prominent sign at the site’s entrance also refers users to further signs within the site. Responsibility rested with the appellant, having passed the entrance sign, to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. In relation to grace periods, the British Parking Association (BPA) Code of Practice, paragraph 13.2 states: “Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period of and pay for that service in advance (Pay & Display), this would be considered a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN”. It is important to note that a grace period is not a period of free parking for the motorist and a grace period only needs to be granted in a location where parking is permitted. As parking was not permitted at all on the site, the driver would not be entitled to any grace period. Accoding to the images, there is no evidence of any circumstances forcing the appellant to park in no parking at any time area and the warden has photographed the vehicle as evidence for the images on the PCN. The appellant says that they do not know whether the time stamps on the photos are accurate as it is possible they have been added after, but they have not provided any evidence to support their statement. By parking at the site, the driver became subject to the terms and conditions, which apply to all motorists that use the site. By parking in a strictly no parking at any time area, they have breached the applicable terms and accepted the potential consequence of incurring a PCN. Ultimately, it is the responsibility of the motorist to ensure they seek out and adhere to the terms and conditions of the site in order to avoid the possibility of a PCN being issued. POPLA assessment and decision 27/07/2022 Verification Code 5661592827 Decision Unsuccessful Assessor Name XXXXX Assessor summary of operator case The operator has issued the Parking Charge Notice (PCN) due to parking in a no parking area. Assessor summary of your case The appellant’s case is that no grace period was afforded or time to read the signage set out. They say the operator would not tell them how long the car was stopped for, and they do not know whether the time stamps used on their photos are even accurate as they have may have been added after. The appellant says the lack of clear signage on the entrance and cars parked across other signs mean the operator is in violation of the BPA Code of Practice. They say there is no clear entrance signs and signs in this car park are not prominent, clear or legible from all parking spaces. They say there is a sign near the entrance but, it is angled away, almost side on from the driver as you approach the entrance. They say those who are allowed to park in this car park, park out of the bays and alongside the walls where the other signage should be visible. They say the signs warn that ANPR 'may be used' but fail to transparently warn drivers of what the data will be used for, which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras. They say the majority of the signage uses very small writing, the largest font size being approximately 5cm high and the smallest less than 0.5cm. They say the BPA Code of Practice states that "All photographs used for evidence should be clear and legible" the operator has provided photographs with low resolutions as evidence. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal and says they would dispute the clarity of no parking at any time, in a very busy car park. They say there is obviously parking allowed but no clear signage as to who qualifies. They say the operator has provided a screen grab from google street view and not from the day in question and if it is still up then it is on a wall facing 180 degrees away from the driver on entrance to the car park. They say it is not clear and would be extremely easy to miss. The appellant says they would also dispute the positioning of some of the signage on the site map. They say they have photographic evidence of signs not where the operator states them to be, or very hard to see if they are there. The appellant says they would like to state how predatory the operator has been. They say the car entered the car park, stopped for 2-3 minutes, and then drove off. They say at no point did the driver exit the car or turn the engine off. They say after revisiting the site there are no cameras set up, this is someone hiding in a bush and taking them on their phone as soon as the car stopped. The appellant has provided photographs as evidence to support their appeal. The above evidence has been considered in making our determination. Assessor supporting rational for decision In this case, I cannot see that the driver of the vehicle has been identified at any point in the appeals process. As such, the operator is seeking to pursue the registered keeper of the vehicle. Protection of Freedoms Act (PoFA) 2012 sets out provisions for an operator to pursue the registered keeper of a vehicle, where the driver has not been identified. As the operator is seeking to pursue the keeper, I have reviewed the notice against the relevant sections of PoFA, and I am satisfied that the operator has complied with the act. As such, the registered keeper is now liable for the charge. When entering a private car park, it is the expectation of the motorist to comply with the terms and conditions. The terms and conditions of the particular site must be stipulated on the signs displayed within the car park to allow a motorist to decide if they wish to accept the contract or not. The operator has provided photographic evidence of the signage laid out at the site. The terms and conditions of the site state, “PERMIT HOLDERS ONLY” and “NO PARKING AT ANY TIME … Private Land, unauthorised parking will result in a parking charge notice of £100 … by parking on this land you contractually agree to pay the displayed charge”. The operator has provided photographic evidence of the appellant’s vehicle, parked at the site on 29 April 2022 at 12:27. As the vehicle was parked in a no parking area, the parking charge notice has been issued. It appears a contract between the driver and the operator was formed, and the operator’s case file suggests the contract has been breached. I will consider the appellant’s grounds of appeal to determine if they dispute the validity of the PCN. The appellant states that no grace period was afforded or time to read the signage set out. They say the operator would not tell them how long the car was stopped for, and they do not know whether the time stamps used on their photos are even accurate as they have may have been added after. I must first establish if the appellant has entered into a parking contract. The British Parking Association (BPA) Code of Practice sets out the standards that it expects its members to meet when managing car parks. Paragraph 13.1 requires parking operators to allow the driver a minimum of five minutes to read the signage and decide if they are going to stay or go if the site is one where parking is permitted. Additionally, paragraph 13.2 makes it clear that the consideration period does not apply once a parking event takes place. Further, paragraph 13.4 also makes it clear that unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period. As the site is not one where general parking is permitted, the driver is not entitled to a 5 minute consideration period. Having viewed the available images I can see that the appellant’s vehicle was stationary for at least 3 minutes, in close proximity to the signage, indicating in large bold letters that parking was not permitted at any time. The driver chose to remain at the site for a period of 3 minutes and consequently they are bound by the parking contract. The appellant questions the accuracy of the time stamps on the photographs. At POPLA, we accept all evidence from both parties in good faith, and unless proven otherwise, we assume it to be correct. In the absence of evidence to the contrary, I must proceed on the basis that the time stamps are accurate. The appellant says the lack of clear signage on the entrance and cars parked across other signs mean the operator is in violation of the BPA Code of Practice. They say there is no clear entrance signs and signs in this car park are not prominent, clear or legible from all parking spaces. They say there is a sign near the entrance but, it is angled away, almost side on from the driver as you approach the entrance. They say those who are allowed to park in this car park, park out of the bays and alongside the walls where the other signage should be visible. They say the signs warn that ANPR 'may be used' but fail to transparently warn drivers of what the data will be used for, which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras. They say the majority of the signage uses very small writing, the largest font size being approximately 5cm high and the smallest less than 0.5cm. They say the BPA Code of Practice states that "All photographs used for evidence should be clear and legible" the operator has provided photographs with low resolutions as evidence. After reviewing the operator’s evidence, the appellant reiterates their grounds of appeal and says they would dispute the clarity of no parking at any time, in a very busy car park. They say there is obviously parking allowed but no clear signage as to who qualifies. They say the operator has provided a screen grab from google street view and not from the day in question and if it is still up then it is on a wall facing 180 degrees away from the driver on entrance to the car park. They say it is not clear and would be extremely easy to miss. The appellant says they would also dispute the positioning of some of the signage on the site map. They say they have photographic evidence of signs not where the operator states them to be, or very hard to see if they are there. The appellant has provided photographs as evidence to support their appeal. The British Parking Association (BPA) Code of Practice sets out the standards that it expects its members to meet when managing car parks. Key to this case, section 19 sets out the standards for the signage. Paragraph 19.2 requires there to be an entrance sign in most instances, and in this case, I can see evidence there is one. This should have put drivers on notice that terms applied. While this site does have an entrance sign, paragraph 19.2 goes on to states that there may be reasons why it is impractical, to have a standard form of entrance sign, for example at parking areas where general parking is not permitted. Paragraph 19.3 requires that there must be specific terms and conditions signage that is conspicuous, legible, and written in intelligible language, so they are easy to see, read, and understand. I consider the wording and text is clear on the signs and have concluded that the signage itself meets these requirements, and there is enough of it at the entrance and around the site for motorists to understand the terms that apply. While the appellant refers to parked vehicle obscuring the signs, the images taken at the time of the contravention, show that the signage is clearly visible and not obscured by parked vehicles as it is clearly visible in the images. The entrance sign clearly states, “Permit Holders Only”, therefore unless the appellant had a permit they were not entitled to park at the site. The appellant states that they are disputing the positing of the signage on the map provided by the operator, however, they have failed to provide any evidence to substantiate, this. Further, the images taken at the time of the contravention show the signage is clearly visible. There is no requirement for the image of the site map and additional images of the signage to be taken on the date of the contravention. While I acknowledge the appellant’s comments regarding the Automatic Number Plate Recognition (ANPR), the signs state that it ‘may be used’. As the images of the contravention were taken by the warden, this does not impact on the validity of the PCN. The appellant says they would like to state how predatory the operator has been. They say the car entered the car park, stopped for 2-3 minutes, and then drove off. They say at no point did the driver exit the car or turn the engine off. They say after revisiting the site there are no cameras set up, this is someone hiding in a bush and taking them on their phone as soon as the car stopped. Paragraph 9.5 of the BPA Code of Practice makes it clear to operators that they must not use predatory or misleading tactics to lure drivers into incurring parking charges. I have already established that there is clear signage at the site stating, “NO PARKING AT ANY TIME”. The signage clearly states, “THIS AREA IS MONITORED 24 HOURS A DAY 7 DAYS A WEEK”. Therefore, I do not consider the operator has demonstrated any predatory or misleading tactics as the terms are clear. While I note that the appellant refers to the photographs taken by the warden, Paragraph 21.5a of the BPA Code of Practice states that the operator may use photographs as evidence that a vehicle was parked in an unauthorised way. It also states, “All photographs used for evidence should be clear and legible and must not be retouched or digitally altered”. The appellant says the operator has provided images that are poor resolution, having viewed the evidence provided I am satisfied that it is sufficient to identify the breach. The appellant states that the vehicle was not parked as the driver did not leave it; however, for the period that the vehicle remained on site, the motorist was making use of the facilities provided by the operator. Further, the words ‘parking’ and ‘waiting’ are largely synonymous for the purposes of parking disputes. That is to say that a driver who ‘waits’ at a site for their own purposes is also deemed to have ‘parked’ at the site. The appellant states the Unfair Terms in Consumer Contract Regulations 1999 applies. In the case of ParkingEye v Beavis, the Supreme Court considered whether the Unfair Terms in Consumer Contract Regulations 1999 applied. The Court considered that a charge in the region of £85 did not engage these regulations. I therefore do not consider they apply here in the case of a £100 charge. Ultimately, it is the motorist’s responsibility to ensure that they park in accordance with the terms and conditions on a privately operated car park. By parking on this land this signifies their acceptance of the terms and conditions and by parking in a no parking area, these terms and conditions were not met. POPLA’s remit is to determine whether the PCN has been issued correctly. On this occasion I conclude that the operator has correctly issued the parking charge. Accordingly, I must refuse this appeal. This post has been edited by itsgonewrong: Mon, 8 Aug 2022 - 11:59 |
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Mon, 8 Aug 2022 - 13:13
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#4
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Member Group: Members Posts: 56,265 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
I am at the point where I either pay the fine or go to court No you aren't. 1/ This is an invoice not a fine, though it may feel like it. 2/ You only get to court if PPS decide to take it there, if they don't then it doesn't happen. So your choices are to pay the invoice or wait to see if PPS want to risk it in court or not. -------------------- 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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Mon, 8 Aug 2022 - 14:39
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#5
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Member Group: Members Posts: 17,088 Joined: 8 Mar 2013 Member No.: 60,457 |
The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
The internal signs just say no parking and are not making an offer of a contract ot park. No contract = No breach = no money |
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Mon, 8 Aug 2022 - 17:51
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#6
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Member Group: Members Posts: 10 Joined: 25 Oct 2021 Member No.: 114,511 |
Thanks The Rookie - That's my quandry. Risk the extra money from court or swallow the invoice
Thanks ostell - I will look into those cases. |
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Mon, 8 Aug 2022 - 19:06
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#7
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Member Group: Members Posts: 35,159 Joined: 2 Aug 2008 From: Woking Member No.: 21,551 |
The PPC is a BPA member. See page 30: https://www.britishparking.co.uk/write/Docu..._2020_v8(2).pdf This blue rectangle with the ‘P’ symbol can be left out if public parking is not invited and it is trespass you are managing. But the 'P' is in the sign. It therefore invites motorists to enter and establish the detailed Ts and Cs...which takes time. IMO, POPLA are wrong, but it is for the appellant to make the case, not for POPLA to look for you. |
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Tue, 9 Aug 2022 - 10:07
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#8
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Member Group: Members Posts: 10 Joined: 25 Oct 2021 Member No.: 114,511 |
Thanks, that's really helpful. I'm leaning more towards waiting it out and seeing what they do. I feel like there's enough in there for me to argue my case.
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Tue, 9 Aug 2022 - 10:29
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#9
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Member Group: Members Posts: 56,265 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
In which case it can make sense to write to them and detail what your main defence points will be if they chance it in court, the aim being to put them off taking it to court in the first place by you appearing informed and up for a fight.
Post a draft here for critique before sending. -------------------- 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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