Entered No Access Area - Park Watch - ** WON AT POPLA **

[markavfc]

Hi all. First time poster on here.

 

I received the attached the attached parking charge notice a couple of days ago. It is from a company called park watch and states I entered a no access area on private land and provides photographic evidence showing this. I cannot dispute that I did this. The location was One Stop Shopping Centre in Perry Barr, Birmingham.

 

My question is would I have any grounds of appeal?

 

Any information/advice much appreciated.

 

Many thanks

 

Mark

[silverfox1961]

Hi and welcome to CAG,

 

Were there any signs saying 'No Entry' Just because you entered a no access area does not mean much. On private land, signage that is used on public roads (i.e No Entry) mean nothing on private land.

 

Are you able to go back and photograph any signs around the area as well as the sign on the entrance.

 

I'll try and see what can be found on Google Maps.

[silverfox1961]

You entered a buses only area. with two No Entry signs. As such I would see it as trespass, nothing else. They shouldn't be able to chase for trespass as that is down to the landowner and the amount claimed for trespass will never stand.

There is a red sign by some fencing regarding access so I would like to see a pdf of that (so we can zoom in and out) Google doesn't get close enough

[markavfc]

Hi,

 

Thank you for the quick reply. I can get a picture of that sign and upload it later showing the wording.

 

I have attached a picture of the location showing signs.

 

Thanks

 

Mark

[ericsbrother]

the signage is prohibitive so if you disobey it cannot be a contract or a breach of contract. The stupid peiople who write the signs for the parking co's should learn the law and how to write but they dont bother with that, they just send out demands for payment nad most people pay up.

[ericsbrother]

their NTK isnt compliant with the PoFA either. If you feel like you want to appeal just write to them saying that there is no keeper liability as their NTK isnt compliant with paras 8 or 9 of the POFA and in any case there is no contract to breach.

Dont go into any lengthy discussion with them after this point, they will think you are then considering paying them good money for nothing

[silverfox1961]

Ruddy hard work finding out info on this company.

 

Basically, they are Defence Systems Ltd. trading as Park Watch. Since their inception in 2013, I can find no instances of court action. They send a few letters followed by debt collector letters and...that's it!

[silverfox1961]

Of course having said the above, I come across this

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?466041-Park-Watch-(Defence-Systems-ltd)-Gladstone-claimform-PCN-Now-%A3234.87&p=4914051&viewfull=1#post4914051

 

I am at a loss why Gladstones are involved as they are the IPC/IAS and nothing to do with the BPA. Perhaps they have been 'convinced' to try a claim.

[markavfc]

Thank you for all the help so far. I am going to go out to the location today and take a picture of the signs to get the wording.

 

Ericsbrother you stated their NTK isn’t compliant “with paras 8 or 9 of the POFA and in any case there is no contract to breach” can you let me know how they aren’t compliant and also what you mean by no contract to breach.

 

Would I just send them an email stating that they aren’t compliant and that there is no contract to breach?

 

I have attached an image showing the reverse of the letter which gives further info.

 

Thanks

 

Mark

[themagician]

read post 5.

[markavfc]

I have now been out to the location and this is the sign just before where I entered.

 

Can I have your guys thoughts on this please and if this means I will have to pay.

 

Thanks

 

Mark

[ericsbrother]

the sign says something is prohibited so how come they can claim that you agree to pay them for trespassing (as you were a trespasser when you entered) Only the landowner can sue for trespass and then only recover his losses as a result. The loss for entering a bus garage? nothing, it is designed to have much heavier vehicles so your little car cant cause any damage.

In short, the advice remains exactly the same. Send them the short letter saying there has been no breach of contract and that in any case their demand does not fulfil the requirements of paras 8 or 9 of the PoFA.

read the paragraphs yourself, then read their NTK and you will see that the wording is deficient. As for the prohibitive nature of the signage not being a contract, well there are bags of examples of that.

[silverfox1961]

I agree with ericsbrother. Whilst i did post a link to where court action has occurred, this does not mean you will have to suffer the same fate.

 

for ease of reference, here is the link to the relevant bits of PoFA

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

 

In your initial appeal, I would be stating

No contractual obligation

Non compliance with PoFA

Any action can only be taken by the landowner unless proven different by way of a unredacted copy of the contract.

The so called charge cannot be true as there was no loss incurred.

 

They will reject you as this is standard practice but by doing so, they must give you a code to take to a second appeal via POPLA.

 

Never mention the driver. you are under no obligation to do so. In any appeal state 'the driver', not 'Mr smith'

[markavfc]

Thank you for all the advice. I will do as advised. They state I can write to them at their appeals address or they have an appeal email address. Does it make any difference which option I use to contact them?

[mikeymack2002]

The other issue is are they even entitled to claim trespass?

 

 

Why if you have a look at the images or see attachment it clearly states 'Red Route' which is public highway.

 

 

the lines traverse the roundabout,

this for all intents and purposes is a road traffic incident.

 

 

Also it helps when you view all the signs around the estate.

 

 

The most interesting one is picture one of my attachment... Bottom picture paragraph 3

'The Management will not be responsible for injury OR LOSS HOWEVER CAUSED'

 

This includes their loss does it not.

 

 

They failed to stipulate what sort of loss haven't they?

 

 

I am just reading their own words here nothing more...

Doc1.pdf

[markavfc]

the sign says something is prohibited so how come they can claim that you agree to pay them for trespassing (as you were a trespasser when you entered) Only the landowner can sue for trespass and then only recover his losses as a result. The loss for entering a bus garage? nothing, it is designed to have much heavier vehicles so your little car cant cause any damage.

In short, the advice remains exactly the same. Send them the short letter saying there has been no breach of contract and that in any case their demand does not fulfil the requirements of paras 8 or 9 of the PoFA.

read the paragraphs yourself, then read their NTK and you will see that the wording is deficient. As for the prohibitive nature of the signage not being a contract, well there are bags of examples of that.

 

Hi. Thanks for all your help.

 

Can you just clarify a couple of things. You mention paragraphs 8 and 9 of POFA. I have looked at these on the link silverfox gave in post 13. Para 8 refers to Trespass and I assume my argument would be that the charges aren’t appropriate and the landholder must be able to show he or she has suffered a loss and justify the damages they are seeking to recover for the trespass.

 

Para 9 refers to Access to DVLA registered keeper records. Could you let me know what argument I would be putting forward in regard to this please.

 

Thanks

Edited July 5, 2016 by markavfc

[MrNumbskull]

They are probably referring to schedule 4 paragraphs 8 and 9 regarding the time limits for NTK and NTD etc.

[ericsbrother]

you arent putting forward an argument, you are telling them to f*** off as they have no claim. If you go into any detail you only leave yourself opent o further questioning and correspondence from the company and that makes them think that you would pay if they present a nicely argued rerason to do so when there is no reason whastsoever for them to demand anything from you due to their incompetence in sign writing.

[markavfc]

Ok so based on all the information given I will just keep it simple and write/email them and state I will not be paying this so called charge as:

 

There is no contractual obligation and they have not complied with the Protection of Freedoms Act 2012. In addition the so called charge cannot be true as there was no loss incurred and that any action can only be taken by the landowner unless proven different by way of an uredacted copy of the contract.

 

Is it best to write to them or email them at the appeals email address they have provided?

 

Thanks again.

[MrNumbskull]

If it was me I would send it from the post office via regular mail and get a proof of posting (it's free).

[markavfc]

I have written a letter containing all requested details (address, vehicle reg, their reference etc) and I have stated this:

 

With reference to your recent letter reference number 3*****. The driver will not be paying this so called charge as there is no contractual obligation and you have not complied with schedule 4 of the Protection of Freedoms Act 2012. In addition the so called charge cannot be true as there was no loss incurred and any action can only be taken by the landowner unless proven different by way of an uredacted copy of a contract.

 

Does this sound OK? if so I will post it today.

 

 

Thanks for all the advice.

[ericsbrother]

dont bother with the part starting "in addition..." they will think that you will accept their arguments around Beavis if you put that. No keeper liability under the POFA and no contractual obligation is enough.

[markavfc]

I have done as stated and removed the second so it now simply reads:

 

With reference to your recent letter reference number 3*****.

 

 

The driver will not be paying this so called charge as there is no contractual obligation and you have not complied with schedule 4 of the Protection of Freedoms Act 2012.

 

I assume all I am doing at this stage is getting a POPLA code and I then do a more detailed response to them.

 

I have done a little research and found that someone else had an appeal by POPLA allowed for exactly the same circumstance/location as mine relates to.

 

 

This was pre Beavis though in 2014 so would Beavis make a difference to this? Below is the POPLA decision. Could I use this exact case in my appeal to POPLA?

 

Kevin ***** (Appellant)

-v-

Defence Systems Limited (Operator)

 

The Operator issued parking charge notice number 3***** arising out of the presence at One Stop Shopping Centre, on ****** 2014, of a vehicle with registration mark ******.

 

The Appellant appealed against liability for the parking charge.

 

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

 

The Assessor’s reasons are as set out.

 

The Operator should now cancel the parking charge notice forthwith.

 

3******** * ******* 2014

 

Reasons for the Assessor’s Determination

 

On ******** 2014 the operator issued a parking charge notice to a vehicle with registration mark ********. The operator’s employee recorded that the vehicle entered a no access area.

 

The appellant raised many grounds of appeal;

however I shall only deal with the ground upon which the appeal is being allowed.

 

 

Specifically,

the appellant submitted that the parking charge does not represent a genuine pre-estimate of loss.

Appellants are not to be expected to use legal terminology.

 

 

In this case,

it appears to be the appellant’s case that the parking charge is in fact sum for specified damages,

in other words compensation agreed in advance and so should be proportionate to the loss suffered.

 

 

Accordingly, the charge must be shown not to be punitive.

This is illustrated by the operator providing a genuine pre-estimate of loss, which reflects the parking charge.

 

The onus is on the operator to prove its case on the balance of probabilities.

Accordingly, once an appellant submits that the parking charge is not a genuine pre-estimate of loss; the onus is on the operator to produce some explanation or evidence to tip the balance in its further.

 

In this case the operator has stated that as the parking charge is not in excess of £100 they feel they do not have to justify the parking charge as a genuine pre-estimate of loss.

 

 

I am not minded to accept that it is sufficient to do this.

Once the appellant raises the issue of genuine pre-estimate of loss, the operator must either argue that the charge is consideration (i.e. the price paid for parking) and so does not have to be a genuine pre-estimate, or that it is liquidated damages in which case the charge must be justified as a genuine pre-estimate of loss. The operator has done neither in this case.

 

Consequently I must find that the operator has failed to discharge their burden.

Accordingly, I allow the appeal.

*****************

Assessor

[zydeco]

change "the driver" to "as the keeper I..."

that appeal doesnt apply after Beavis but you've got plenty more.

[markavfc]

change "the driver" to "as the keeper I..."

that appeal doesnt apply after Beavis but you've got plenty more.

 

I have changed it to “As the keeper I”.

 

Thanks for your advice. What other grounds will I now be able to appeal on?