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#Post#: 60635--------------------------------------------------
Re: Minster Baywatch - overstayed - Meadowhall
DIR By: H C Andersen
Date: March 5, 2025, 3:09 am
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I can't edit my last post...
..but the thought that a 'relevant contract' could have been
entered into by tail-end-charlie is, frankly, laughable.
“relevant contract” means a contract (including a contract
arising only when the vehicle was parked on the relevant land)
between the driver and a person who is—
(a)
the owner or occupier of the land; or
(b)
authorised, under or by virtue of arrangements made by the owner
or occupier of the land, to enter into a contract with the
driver requiring the payment of parking charges in respect of
the parking of the vehicle on the land;
“relevant land” has the meaning given by paragraph 3;
“relevant obligation” means—
(a)
an obligation arising under the terms of a relevant contract; or
(b)
an obligation arising, in any circumstances where there is no
relevant contract, as a result of a trespass or other tort
committed by parking the vehicle on the relevant land;
#Post#: 60636--------------------------------------------------
Re: Minster Baywatch - overstayed - Meadowhall
DIR By: DWMB2
Date: March 5, 2025, 3:28 am
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I agree - I think leading with the unreasonable terms is wise.
The other points are valid, and sensible to include as
additional reasons no money is owed, but I'd be minded to start
with the nature of the alleged contract and the impossibility of
performance.
I'd also throw in something about this that I mentioned further
back in the thread:
--- Quote from: DWMB2 link ---
>
> The parties to a parking contract are the driver and the
parking operator. Whilst Schedule 4 of the Protection of
Freedoms Act provides a mechanism to recover unpaid charges from
the keeper, that does not alter the parties between whom the
contract was formed.
>
> In light of this, I'm not sure what evidence Minster Baywatch
could produce to show that the driver was the same on each
occasion, and that any driver has exceeded the 14 hours per week
limit.
>
> The signage is silent as to whether the 14 hours applies to
the driver or the vehicle, which brings to mind the following
from the Consumer Rights Act
HTML https://www.legislation.gov.uk/ukpga/2015/15/part/2:
>
> [indent]69 Contract terms that may have different meanings
>
> [indent][i] (1)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] [/indent][/i]
>
--- End Quote ---
#Post#: 60945--------------------------------------------------
Re: Minster Baywatch - overstayed - Meadowhall
DIR By: gme
Date: March 6, 2025, 8:23 am
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Thanks all for some solid advice, I’ve taken this onboard and
drafted up these revised comments, though I’m not sure if I’m
including points missed in the original appeal (i.e.
specifically differentiating between two drivers, I don’t think
I mentioned that outright), I know POPLA state they won’t
consider new evidence so I’m not sure if this counts as evidence
or is simply a comment in response to Minster’s evidence pack.
What an absolute minefield to have to navigate all for the crime
of being a regular customer for the past ~20 years. Safe to say
neither me nor the driver(s) will ever go back while these rules
are in force, I used to personally spend ~£2-3k there every year
as I do my weekly food shop, buy all toiletries, dine out, and
visit a handful of high street & independent shops they have but
if they want to swap all of that for a one off £100 instead,
more fool them.
Dear POPLA Adjudicator,
I am submitting my comments on Minster Baywatch’s evidence in
relation to my appeal against the Parking Charge Notice (PCN). I
maintain that the charge is unfair, unenforceable, and should be
cancelled based on the following legal and procedural grounds:
⸻
1. The Terms of the Alleged Contract are Unreasonable,
Ambiguous, and Impossible to Enforce
Minster Baywatch alleges that the vehicle exceeded a 14-hour
total parking limit within a rolling 7-day period. However, this
restriction is fundamentally flawed and unenforceable for the
following reasons:
•
parking operator at the time of parking. Schedule 4 of the
Protection of Freedoms Act (POFA) allows for liability to be
transferred to the keeper, but it does not alter the fact that a
contract can only be formed with the driver at the time of each
visit.
•
responsible for each visit. This means they are attempting to
enforce a contractual term against a driver who may not have
been aware of prior visits.
•
to the driver or the vehicle. Under Section 69 of the Consumer
Rights Act 2015, if a contractual term can have multiple
meanings, the interpretation most favorable to the consumer must
apply. The most favorable interpretation here is that the
restriction applies to a single continuous stay rather than
cumulative visits.
•
by their vehicle over a rolling week and to know how long any
previous driver has stayed. This is an unreasonable and
impractical burden, making compliance impossible and the
contract unenforceable.
It is entirely preposterous to suggest that a later driver of
the vehicle is somehow responsible for cumulative time accrued
by previous drivers. If POPLA upholds such an illogical
enforcement mechanism, it risks undermining consumer protections
and fair industry practices.
⸻
2. Failure to Provide Adequate Notice of Material Changes
Minster Baywatch claims that new parking restrictions were
introduced, but they have not provided sufficient evidence that
these changes were clearly communicated to motorists,
particularly regular visitors. Under consumer protection laws
and industry standards, material changes must be prominently
displayed to ensure all users are aware of the updated terms.
•
signage to be used when significant changes occur. Minster
Baywatch has not provided evidence of clear, prominent temporary
notices.
•
contract terms (including parking restrictions) must be fair and
transparent. A sudden change in parking terms without clear,
advance notification to regular customers is likely unfair and
unenforceable.
•
motorist cannot be bound by unexpected terms unless they had a
reasonable opportunity to be aware of them before parking.
Minster Baywatch has not proven that regular motorists had such
an opportunity.
•
motorist can enter several of Meadowhall’s large multi-storey
car parks without encountering any clear warnings about new
restrictions. This means a regular visitor, particularly one who
may use different car parks, is not adequately informed.
Minster Baywatch also claims:
“If a driver does not agree with a term noted on signage, the
driver is able to reject the terms by promptly leaving the
site.”
This argument is invalid if drivers are not sufficiently
informed of the new terms in the first place.
⸻
3. Landowner Authority – Lack of a Valid Contract at the Time of
the Alleged Contravention
Minster Baywatch has provided a contract variation agreement
dated April 2024 between themselves and British Land (Meadowhall
GP Limited). However, this does not prove they had the authority
to issue PCNs at the time of the alleged contravention in
January 2025, for the following reasons:
•
Investment Management in July 2024. This means British Land was
no longer a legal owner of the land at the time of the alleged
contravention.
•
was signed before British Land exited its ownership role, and
there is no evidence that the new owner (Norges Bank) agreed to
continue this contract.
•
have a valid and current contract with the landowner at the time
of issuing PCNs. Minster Baywatch has not provided a valid
contract with Norges Bank, the rightful landowner in January
2025.
Unless Minster Baywatch can provide an unredacted contract
proving that Norges Bank Investment Management explicitly
authorised them to enforce parking at the time of the alleged
contravention, then they had no legal standing to issue this
PCN.
⸻
4. Non-Compliance with Protection of Freedoms Act (POFA) 2012
Minster Baywatch claims the PCN was POFA-compliant, but the
Notice to Keeper (NTK) was not delivered in accordance with POFA
timelines:
•
until 22nd January 2025. POFA Schedule 4, Paragraph 9(5) states
that for liability to transfer to the keeper, the NTK must be
delivered within 14 days.
•
making it impossible to verify compliance with POFA deadlines.
The burden of proof is on the operator, and they have failed to
demonstrate that the NTK was delivered on time.
Since POFA requirements have not been met, keeper liability
cannot be established.
⸻
Conclusion
For the reasons above, I respectfully request that POPLA uphold
my appeal and cancel this Parking Charge Notice. The charge is
unenforceable due to:
1.
contract, which requires an impossible burden on drivers.
2.
violation of BPA Code of Practice and consumer law.
3.
Meadowhall before the alleged contravention and Minster Baywatch
has not provided proof of a contract with the new owners.
4.
not apply.
This charge is fundamentally flawed, unreasonable, and
unenforceable. I trust that POPLA will uphold fair consumer
practices and allow this appeal.
#Post#: 71655--------------------------------------------------
Re: Minster Baywatch - overstayed - Meadowhall
DIR By: gme
Date: May 15, 2025, 9:26 am
---------------------------------------------------------
Just like to add that I’ve received a POPLA decision and won!
The comments from the reviewer basically state that there was
insufficient signage to notify users of material changes,
Minster Baywatch provided evidence of the actual parking terms
but never stated how many signs were introduced warning visitors
of new rules being imposed. I provided evidence that there was
only one sign at the entrance of some of the car parks, which is
insufficient for a destination with multiple car parks and
12,000 spaces.
The rest of the argument regarding the landowner and other
issues was disregarded as the above evidence was sufficient
enough to win the appeal.
Thanks for all the support and help!
#Post#: 71657--------------------------------------------------
Re: Minster Baywatch - overstayed - Meadowhall
DIR By: DWMB2
Date: May 15, 2025, 9:44 am
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Great news - could you please provide us with a copy of the
assessment comments?
Well done!
#Post#: 71660--------------------------------------------------
Re: Minster Baywatch - overstayed - Meadowhall
DIR By: gme
Date: May 15, 2025, 9:55 am
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Assessor summary of operator case
The operator has issued the parking charge notice (PCN) as the
vehicle exceeded 14 hours maximum combined stay over any one
week (Monday to Sunday) period.
Assessor summary of your case
The appellant has provided a detailed account of events. For the
purpose of my report, I have summarised the grounds into the
following points and have checked each point before coming to my
conclusion. The appellant says that: 1. Failure to highlight a
material change in terms. 2. Lack of adequate signage to notify
regular users of new restrictions. 3. Unfair and impractical
contract terms. 4. Lack of landholder authority. 5. Failure to
comply with POFA 2012. The appellant reiterated their version of
events in the motorist’s comments section. The appellant
included photographic evidence of their lack of signage in the
car park to prove the change in the terms and conditions were
adequately communicated (times nine) in support of their appeal.
I have considered this in my decision.
Assessor supporting rational for decision
I have allowed this appeal for the following reason: In this
case, it is not clear who the driver of the appellant’s vehicle
is, so I must consider the Protection of Freedoms Act (PoFA)
2012, as the operator issued the Parking Charge Notice (PCN) to
the keeper of the vehicle. The operator has provided me with a
copy of the notice to keeper sent to the appellant. I have
reviewed the notice to keeper against the relevant sections of
PoFA 2012 and I am satisfied that it is compliant. I will
therefore be assessing the appellant’s liability as the keeper
of the vehicle. By issuing the appellant with a PCN, the
operator has implied that the appellant has not complied with
the terms and conditions of the car park in question. The burden
of proof lies with the operator to provide POPLA with clear,
sufficient evidence to demonstrate that the Parking Charge
Notice (PCN) has been issued correctly. In this case, the
operator has issued the PCN as the vehicle exceeded 14 hours
maximum combined stay over any one week (Monday to Sunday)
period. After very careful consideration of the appellant's
grounds of appeal, photographic evidence and the operator's
evidence pack I can see the signage in the car park only shows
one sign telling motorists of the change to the terms and
conditions in the car park. Section 3.4 of the Code says that
when there is a material change to pre-existing terms of a car
park, then additional temporary signs must be placed at the
entrance to the car park for a period of no less than four
months from the date of the change to make that clear. I can see
from the evidence pack, the operator states that ‘multiple’
temporary new terms and conditions signs have gone up around the
car park, however, only photographic evidence of one such sign
was provided and no actual number of how many signs in the
evidence pack to back up that claim. I would at least expect the
parking operator to list the amount of new temporary signs that
were erected around the car park entrances to advise of the
change to the terms and conditions of the car park. However,
proof of this would be preferred to adequately rebut the
appellant's main ground of appeal. Especially as it is such a
large site with around 12000 parking spaces and what would be a
number of entrances to the car park for the many regular users
of the site. It is within the operator's gift to ensure their
evidence pack has sufficient information and photographic
evidence to adequately rebut the appellant's grounds of appeal
about the change in the terms and conditions, but in this case
their rebuttal is not sufficient. Therefore, I do not feel the
operator has issued the PCN correctly and must allow this
appeal. In conclusion, I can see that the appellant has
referenced other points within their appeal to POPLA, but I do
not feel that these need to be reviewed based on the outcome
reached.
#Post#: 71662--------------------------------------------------
Re: Minster Baywatch - overstayed - Meadowhall
DIR By: DWMB2
Date: May 15, 2025, 10:12 am
---------------------------------------------------------
Good result.
I'm speculating here, of course, but this seems like a classic
example of an assessor choosing the least controversial ground
to uphold, to avoid having to assess on the other points. If
they allow the appeal on the basis of no signage about the
changed terms, it means they don't have to address the much more
fundamental issue of the bizarre alleged contract. If they'd had
to rule on that, they'd have been stuck between trying to come
up with an explanation as to why it was a reasonable term, or
upholding your appeal and essentially saying that the entire
set-up is entirely unenforceable.
#Post#: 71707--------------------------------------------------
Re: Minster Baywatch - overstayed - Meadowhall
DIR By: gme
Date: May 15, 2025, 1:10 pm
---------------------------------------------------------
I was kind of hoping for more of a response regarding the other
points, so I could then take it to Meadowhall and request they
do change the stupid terms and provide an explanation as to who
exactly the landowner is. Oh well, they’ve lost me as a regular
customer, I have since switched to a different M&S for my weekly
groceries and no long spend money on bits and bobs there,
shopping was a leisure but I go elsewhere now, I know I won’t
make much of a dent to their funds but it’s the principle!
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