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#Post#: 25958--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: DWMB2
Date: June 14, 2024, 4:55 am
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You essentially need to walk the assessor through your points,
assuming they have no prior knowledge (which shouldn't be the
case, but helps make your argument clear). For the signage point
for example, talk them through it point by point:
- ParkingEye issued a parking charge for "either not purchasing
the appropriate parking time or [...] remaining at the car park
for longer than permitted, in accordance with the terms and
conditions set out in the signage".
- The driver did not do either of these things
- The signage says that tariffs apply between [TIME] and [TIME].
The vehicle was parked between [TIME] and [TIME]. As they were
not parked during the times when tariffs apply, according to the
signage, it cannot be the case that the driver failed to
purchase the appropriate parking time.
- The signage does not stipulate a maximum permitted stay,
outside of the times when tariffs apply, nor does it state that
parking is prohibited outside of the times when tariffs apply.
As such, it cannot be the case that the driver remained at the
car park for longer than permitted.
- As the driver did not fail to purchase the appropriate parking
time (as no tariff was due), nor did they remain at the car park
for longer than permitted, the charge is not owed and the appeal
should be upheld.
Produce your appeal as a PDF, and include a photo of the signage
with this point, to demonstrate your arguments. (Don't just copy
those bullets verbatim, you may need to expand, that's just an
example of how to walk the assessor through your points.
#Post#: 26004--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: H C Andersen
Date: June 14, 2024, 10:06 am
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Should the OP consider the third option which IMO is the implied
condition that outside the hours of 5pm - 8am parking for the
general public is not permitted?
..appeal should be upheld.
The appellant has even considered a third alternative - which
has not been asserted let alone implied by the creditor but
which is being addressed in this appeal for completeness - which
is that parking by the general public outside of the charging
hours is not permitted and therefore being on site at all during
this period must constitute a breach. However, as the assessor
will appreciate, even if such a condition applied, which it is
asserted does not, this could only give rise to a trespass and
therefore no contract was formed and the parking charge for
breach of the same must be dismissed.
#Post#: 26008--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: DWMB2
Date: June 14, 2024, 10:26 am
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--- Quote from: H C Andersen link ---
>
> Should the OP consider the third option which IMO is the
implied condition that outside the hours of 5pm - 8am parking
for the general public is not permitted?
>
--- End Quote ---
I'd say that isn't really implied by the signage, it's only
implied insofar as that must be the condition ParkingEye were
intending to take effect, otherwise they wouldn't have issued a
parking charge. That said, if making this point, I'd be tempted
to shift the focus to the fact that if ParkingEye wish to argue
that this is the intended interpretation of the signage, then
that term is at best ambiguous, and as such, Section 69 of the
Consumer Rights Act (2015)
HTML https://www.legislation.gov.uk/ukpga/2015/15/section/69/enacted<br
/>should apply:
[indent]If a term in a consumer contract, or a consumer notice,
could have different meanings, the meaning that is most
favourable to the consumer is to prevail.[/indent]
The meaning that is most favourable to the consumer here is the
one that means parking outside of the times stated is allowed
without the payment of a tariff, and thus no breach has
occurred.
They could, if they wanted to go full belt and braces, then
follow that up with your point to say that even if it was
accepted that the terms were such that parking is not allowed
outside of those terms, this would be a trespass. My only
apprehension about making that point is that it could add
confusion into the mix, and allow the assessor to focus on that
point, to the detriment of the other points.
#Post#: 26011--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: b789
Date: June 14, 2024, 10:37 am
---------------------------------------------------------
There seems to be an assumption here that the POPLA assessor is
going to be legally trained enough to decipher a suggestion that
it was prohibited to park outside of those hours.
KISS as it may only be the janitor doing the assessment on the
day.
#Post#: 26029--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: DWMB2
Date: June 14, 2024, 11:07 am
---------------------------------------------------------
If it were me appealing, I'd be minded to leave that point out.
If ParkingEye want to make the argument that their sign means no
parking allowed outside those hours, let them, then rebut that
argument at the comments stage. Don't make their own point for
them.
But if you are going to include it, I'd use the Consumer Rights
Act argument.
#Post#: 26033--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: H C Andersen
Date: June 14, 2024, 11:17 am
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Sorry, but I don't think it's helpful to OPs to call into
question the capabilities of POPLA assessors in this way. If
this were correct then it would surely be a total waste of time
to introduce matters regarding the interpretation of the CRA
into such a mix. We can't have it both ways, we either respect
their impartiality and competence and construct appeals
accordingly or not and don't.
C'est la vie.
#Post#: 26037--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: b789
Date: June 14, 2024, 11:27 am
---------------------------------------------------------
No one with extensive experience of POPLA "respects" their
capabilities nor their competence. In fact, unless the argument
is so clear cut, it is advised that it is not worth wasting time
on a POPLA appeal.
POPLA are funded by the BPA members and so are not truly
independent. It has been shown numerous times that when an
assessor has misinterpreted the law or the CoP and complaint
about it has been made, even though they agree that a decision
was made in error, they will not reverse such a decision.
The derogatory inference is precisely because they have shown
that they are not truly independent and are often seen to make
decisions that fly in the face of common sense and then admit it
but refuse to change those decisions. Hence the point being that
it may as well be the janitor or the tea-boy who made the
assessment.
Until such time as a truly independent ADR service is in place,
I and countless others will have little to no respect for their
cosy, incestuous relationship with the BPA.
Others are free to disagree.
#Post#: 26041--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: Swahmad
Date: June 14, 2024, 11:35 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> No one with extensive experience of POPLA "respects" their
capabilities nor their competence. In fact, unless the argument
is so clear cut, it is advised that it is not worth wasting time
on a POPLA appeal.
>
> POPLA are funded by the BPA members and so are not truly
independent. It has been shown numerous times that when an
assessor has misinterpreted the law or the CoP and complaint
about it has been made, even though they agree that a decision
was made in error, they will not reverse such a decision.
>
> The derogatory inference is precisely because they have shown
that they are not truly independent and are often seen to make
decisions that fly in the face of common sense and then admit it
but refuse to change those decisions. Hence the point being that
it may as well be the janitor or the tea-boy who made the
assessment.
>
> Until such time as a truly independent ADR service is in
place, I and countless others will have little to no respect for
their cosy, incestuous relationship with the BPA.
>
> Others are free to disagree.
>
--- End Quote ---
Reading this makes me feel I should've just paid the reduced
fine amount and the popla appeal is pointless... ???
#Post#: 26042--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: Swahmad
Date: June 14, 2024, 11:36 am
---------------------------------------------------------
I have drafted this:
Dear Sirs,
I am appealing this parking charge notice. I am appealing on the
grounds that the driver did not breach any of the terms of
parking as advertised by the signage on the site.
ParkingEye issued a parking charge for "either not purchasing
the appropriate parking time or remaining at the car park for
longer than permitted, in accordance with the terms and
conditions set out in the signage".
The driver did not do either of these things.
The signage at the site (a copy of which is attached) states
that tariffs only apply between 5pm-8am Monday-Friday, and all
day Saturday and Sunday. The vehicle was parked on Friday 3/5/24
between 09:05am and 13:27. As they were not parked during the
times when tariffs apply, according to the signage, it cannot be
the case that the driver failed to purchase the appropriate
parking time. As the car was not parked during these times, no
tariff was due. The signage does not stipulate a maximum
permitted stay, outside of the times when tariffs apply, nor
does it state that parking is prohibited outside of the times
when tariffs apply. As such, it cannot be the case that the
driver remained at the car park for longer than permitted.
It is not implied by the signage that parking outside the hours
of 5pm-8am for the general public is not permitted. If
parkingeye had meant for this, then it should be clearly stated.
If ParkingEye wish to argue that this is the intended
interpretation of the signage, then that term is at best
ambiguous, and as such, Section 69 of the Consumer Rights Act
(2015) should apply:
"If a term in a consumer contract, or a consumer notice, could
have different meanings, the meaning that is most favourable to
the consumer is to prevail."
The meaning that is most favourable to the consumer here is the
one that means parking outside of the times stated is allowed
without the payment of a tariff, and thus no breach has
occurred.
As the driver did not fail to purchase the appropriate parking
time (as no tariff was due), nor did they remain at the car park
for longer than permitted, the charge is not owed and the appeal
should be upheld.
#Post#: 26046--------------------------------------------------
Re: Carpark charge before 5pm
DIR By: b789
Date: June 14, 2024, 12:00 pm
---------------------------------------------------------
Unless others have a different point of view, I'd say that you
may as well try your luck with POPLA and let's see how they make
their assessment.
Don't be disheartened by the discussion about the merits or
otherwise of POPLA. At least they have much higher successful
appeal rate than the IAS which is around 4%-5%.
An unsuccessful appeal by POPLA has no bearing on any future
claim, should it come to that. In fact, it is often preferred to
have a judge decide whether you owe a debt because they are the
only truly independent arbiter.
If the appeal is not successful at POPLA, it would be
interesting to see how PE deal with this. If they decide to use
a third party debt collector to send useless letters, it means
that they have little to no faith that they would win in court.
You can guarantee that if they use DCB Legal to file a claim on
their behalf, you won't be paying a penny. I won't go into all
the detail of why right now except to say that is a known modus
operandi for any claim issued by DCB Legal that is defended
using the template defence is discontinued before they have to
pay the hearing fee.
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