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

[silverfox1961]

You must realise that this is just a paper exercise as your appeal will be rejected. Leave the basics in but don't go into great detail. What you are after is the POPLA code where you go into greater detail in support for your appeal.

While that appeal was pre beavis, the grounds still stand. the Beavis case was a unique case based on Parking Eye paying for the right to manage a car park.

This appeal is nothing at all similar in nature to the Beavis case therefore losses can be challenged.

 

Personally, I wouldn't give them a heads up on the appeal you have found. Save that for POPLA. Your choice of course. I'm sure others will pop in to advise as well but don't forget the time limits to appeal as the keeper.

[ericsbrother]

the appeal would not be allowed today for a couple of reasons so dont bother with it. When the time comes we will help you with one.

[markavfc]

I have kept it simple as advised and just written to them stating:

 

"With reference to your recent letter reference number 3*****. As the keeper I 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 will update once they have written back to me with the POPLA code.

 

Thanks again for all the advice.

[ericsbrother]

they will most likely deny this appeal but what they say will be telling as they may well damn themselves in doing so.

[markavfc]

Hi all. Please see attached response form Park Watch. As expected they rejected my appeal.

 

Basically said they have taken into consideration the mitigation that I provided but have decided the parking charge was correctly issued for failing to comply with the parking conditions

 

 

and that there are clearly signs stating that vehicles should not enter and stop in the bus only interchange at any time including two No Entry signs, a bus only sign instruction and four high visibility warning signs.

 

I can’t dispute the no entry signs and buses only signs but I am not sure what the four high visibility signs they refer to are. Regardless the PCN is a parking charge and isn’t a fine for entering a no entry.

 

I guess my next step as per the letter they have sent me is to now appeal to POPLA. Can anyone now please advise on what grounds I should do this.

[ericsbrother]

well, you are half right because as said, it is not about disobeying a sign but whether a contract was formed and then breached. In this case no contract was formed so you cannot then breach it.

so appeal to POPLA

1 no keeper liability under POFA due to defective NTK

2 no contractual obligation or breach of contract as signage is prohibitive and therefore only landowner my sue for tort of trespass. ( as per Masterson, Ahktar and the High Wycombe 3)

that about covers it.

POPLA would be wise not to ignore the cases referenced as they are obliged to use them as precedent or risk a judicial review and all of the costs that get run up with that. It used to be a treasonable offence for a judge to deliberately ignore case law precedent set in a higher court but Tony Blair scrapped the Treason Act to make sure he didnt swing for his war crimes and this was part of that bundle.

[silverfox1961]

Hopefully I have converted the image to a pdf. (not done this very often)

parkwatch.pdf

[markavfc]

Thanks again for the advice. Based on this and the research I have done would the below be OK to send to POPLA:

 

I am the registered keeper and I wish to appeal a recent parking charge from Park Watch Ltd. I submit the points below to show that I am not liable for the parking charge:

 

1) Not relevant Land under POFA 2012; no registered keeper liability

2) No contractual obligation or breach of contract as signage is prohibitive and therefore only landowner may sue for tort of trespass.

3) The alleged contravention did not take place

4) No landowner contract nor legal standing to form contracts or charge drivers

5) Misleading and unclear signage

 

 

1) The location is not "relevant land" within the terms of the Protection of Freedoms Act and no registered keeper liability.

 

The incident described is by no stretch of the imagination 'parking' so they cannot invoke POFA 2012 in order to claim keeper liability.

 

The driver has not been identified, yet Park Watch Ltd are claiming POFA 2012 registered keeper liability for this charge.

 

2) No contractual obligation or breach of contract as signage is prohibitive and therefore only landowner my sue for tort of trespass. ( as per Masterson, Ahktar and the High Wycombe 3)

 

3) The alleged contravention did not take place

 

The occurrence alleged is not a "parking event" within the terms of Protection of Freedoms Act.

 

The relevant part of the POFA states –(The notice must) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

 

This paragraph in no way applies to the alleged contravention which is ‘entered no access area’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

 

There was no parking contravention at all. Park Watch Ltd are not able to refer to a regulation that applies to stopping on the road. No contravention applicable to POFA actually took place.

 

4) No landowner contract nor legal standing to form contracts or charge drivers

 

Park Watch Ltd has no authority or lacks sufficient authority to issue charges in relation to alleged occurrences.

 

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

 

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

 

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

 

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

 

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

 

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

 

5) Misleading and unclear signage

 

Park Watch Ltd signage or the signage they are intending to rely upon in this case is deficient in the sense that there are insufficient signs to be seen by motorists when entering the area and that in any event the signage is incapable of establishing the basis of a contract.

 

It possible for drivers to enter this road without seeing the signs thus no contract can be formed between the driver and Park Watch Ltd. The entrance sign is situated on the side of the road on a standard right hand UK car, this makes it difficult for the driver to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering.

 

As a POPLA assessor has said previously in an adjudication

“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

 

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

 

I request that my appeal is allowed.

[silverfox1961]

Blimey! You have done some research. Can you let ericsbrother go over it as he is better than me at these things but will say that from what I have read, it looks good.

 

I would change a couple of words in the third paragraph from the bottom as it is not a Car Park.

 

The signage as such was one by the no entry sign and the others were placed within the bus loading area. I need to look again at google to clarify my thoughts

[silverfox1961]

There are two signs in the hatched area which state 'no stopping' (outside wetherspoons)The red lines also extend past the big 'No Access' area so if you had stopped by the big sign, you would have been in breach of the other signs. Why they would place signs within the bus loading area is beyond my comprehension so their claim of 4 other high visibility signs is misleading. There are only 3 signs in total outside the area and only 1 that states no access.

[markavfc]

Thanks silverfox. I will change the wording as you suggested and wait until ericsbrother has commented before sending into POPLA.

[ericsbrother]

why isnt it relevant land? This means that it is land covered by their own byelaws such as ports, airports railway property etc so unsure how this fits in.

The driver doesnt have to be identified, this is the point of the POFA BUT they then have to follow certain protocols explained in paras 5 and 8 or 6 and 9 of the fofa and this is what they havent done thus failing to create a keeper liability, which is different to not identifying the driver.

The rest is fine but tie in point 3 to point 2 by saying "that because of the above, no contravention can take place and no breach of contract has occurred." or similar.

If you are successful POPLA will only decide on one of the points raised and generally they choose one that does the least damage to the operator (wouldnt do their business any good if they found all of the parking co's activites were unlawful, would it now? who would pay them to make decisions after that)

Let us know when you get an acknowledgement.

[markavfc]

Thanks ericsbrother. Based on what you and silverfox have said I have changed it to the below. I will submit it later and update as soon as I get an acknowledgement.

 

I am the registered keeper and I wish to appeal a recent parking charge from Park Watch Ltd. I submit the points below to show that I am not liable for the parking charge:

 

1) No registered keeper liability

2) No contractual obligation or breach of contract as signage is prohibitive and therefore only landowner may sue for tort of trespass.

3) The alleged contravention did not take place

4) No landowner contract nor legal standing to form contracts or charge drivers

5) Misleading and unclear signage

 

 

1) No registered keeper liability.

 

The incident described is by no stretch of the imagination 'parking' so they cannot invoke POFA 2012 in order to claim keeper liability.

 

The driver has not been identified, yet Park Watch Ltd are claiming POFA 2012 registered keeper liability for this charge.

 

2) No contractual obligation or breach of contract as signage is prohibitive and therefore only landowner my sue for tort of trespass. ( as per Masterson, Ahktar and the High Wycombe 3)

 

3) The alleged contravention did not take place

 

The occurrence alleged is not a "parking event" within the terms of Protection of Freedoms Act. As per point 2 above no contravention can take place and no breach of contract has occurred.

 

The relevant part of the POFA states –(The notice must) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

 

This paragraph in no way applies to the alleged contravention which is ‘entered no access area’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

 

There was no parking contravention at all. Park Watch Ltd are not able to refer to a regulation that applies to stopping on the road. No contravention applicable to POFA actually took place.

 

4) No landowner contract nor legal standing to form contracts or charge drivers

 

Park Watch Ltd has no authority or lacks sufficient authority to issue charges in relation to alleged occurrences.

 

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

 

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

 

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

 

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

 

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

 

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

 

5) Misleading and unclear signage

 

Park Watch Ltd signage or the signage they are intending to rely upon in this case is deficient in the sense that there are insufficient signs to be seen by motorists when entering the area and that in any event the signage is incapable of establishing the basis of a contract.

 

It possible for drivers to enter this road without seeing the signs thus no contract can be formed between the driver and Park Watch Ltd. The entrance sign is situated on the side of the road on a standard right hand UK car, this makes it difficult for the driver to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the area in question without seeing the signage upon entering.

 

As a POPLA assessor has said previously in an adjudication

“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

 

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

 

I request that my appeal is allowed.

[markavfc]

Thanks again to anyone who has helped me.

 

I have submitted the appeal. There was insufficient space for me to enter the details in the summary box on the POPLA site so I attached and submitted a word document which formed the basis of the appeal and stated in the summary box that they should refer to the attached document. How long does it usually take for them to look into the appeal? They have sent me an email saying appeal submitted successfully.

[ericsbrother]

it varies, as a new company has taken over the POPLA appeals system it will be difficult to give a current wait time as most of the appeals cropping up here are old ones that have been reassigned. However, the longer it takes the better for you as the parking co are the ones suffering the costs

[markavfc]

Hi all,

 

Just had a response from POPLA reference my appeal. Here it is:

 

Thank you for submitting your parking charge Appeal to POPLA.

 

An Appeal has been opened with the reference 3**********.

 

Defence Systems Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

 

Yours sincerely

 

POPLA Team

 

 

Thanks to all those who helped with this. Really appreciated.

[honeybee13]

Excellent, that's the second success today. Well done to you and to all those who advised you.

 

I'll amend your thread title.

 

HB

[silverfox1961]

Excellent news. Ericsbrother does it again

 

So, basically when they said this:

Basically said they have taken into consideration the mitigation that I provided but have decided the parking charge was correctly issued for failing to comply with the parking conditions and that there are clearly signs stating that vehicles should not enter and stop in the bus only interchange at any time including two No Entry signs, a bus only sign instruction and four high visibility warning signs.

It was complete and utter bovine excrement.

They knew they hadn't a leg to stand on but they lied and said they did in the hope you thought they were a moral and ethical company who wouldn't do that sort of thing!

People lie

Companies lie

Private parking companies have invented a new way of lying. they actually believe what they are saying

 

Well done to you.

[ericsbrother]

good news for you but it means that their arguments wont get tested and that way they dont automatically lose every other appeal. You need to tell everyone you know about the fault with their signage and thus their rights to claim so less people fall for it.

Next year the Villa will win the championship as well so a double result for you. They lost every home match I ever went to so I have avoided the footy for a while. Still, it could be worse, two of my cousins support Birmingham City.

[silverfox1961]

good news for you but it means that their arguments wont get tested and that way they dont automatically lose every other appeal. You need to tell everyone you know about the fault with their signage and thus their rights to claim so less people fall for it.

Next year the Villa will win the championship as well so a double result for you. They lost every home match I ever went to so I have avoided the footy for a while. Still, it could be worse, two of my cousins support Birmingham City.

 

I was going to say, "Give yourself a pat on the back." but after reading that post, I thought a 'With Sympathy' card may be better and an appointment with a 'trick cyclist' to knock these delusions about Aston Villa out of your head.

 

I'll get me coat

[markavfc]

good news for you but it means that their arguments wont get tested and that way they dont automatically lose every other appeal. You need to tell everyone you know about the fault with their signage and thus their rights to claim so less people fall for it.

Next year the Villa will win the championship as well so a double result for you. They lost every home match I ever went to so I have avoided the footy for a while. Still, it could be worse, two of my cousins support Birmingham City.

 

Cheers for all your help. I am obviously pleased it is all done with at this point but fully understand in the grand scheme of things it would have been better to set a precedent.

 

I hope you are right about the Villa. If you have been a bit of jinx then might well be best you stay away although you wouldn't be alone in being a jinx. I have a season ticket and missed one game at home last season due to having an operation and it turned out it was one of two games we won at home so I missed 50% of our wins

[Wrighteous]

I have received the same letter as markavfc a year on. I was going to pay until I saw this thread. Can someone please advise if the arguments used by markavfc are still relevant?

[markavfc]

I am not aware of any changes that would mean the reasons I used for refusing to pay would not now work. Good luck but I don't think you'll need it.

[honeybee13]

I have received the same letter as markavfc a year on. I was going to pay until I saw this thread. Can someone please advise if the arguments used by markavfc are still relevant?

 

Hello Wrighteous and welcome to CAG.

 

Please start a new thread of your own and tell us what's happened.

 

Best, HB

[Wrighteous]

Hello Wrighteous and welcome to CAG.

 

Please start a new thread of your own and tell us what's happened.

 

Best, HB

 

Literally, I have received the same letter that markavfc got for the same alleged offence which I was going to pay as I wasn't 100% sure if it was legal or not. I plan to use the same arguments that markavfc did and will keep you all updated.