POPLA Appeal

henryreviews123 · 17 June 2017 at 9:26AM

Nothing more to say, UP

SannaKhan · 10 July 2017 at 11:05AM

I just received the following from POPLA and have 7 days to respond:

The appellant has appealed on the basis that they did not park within the car park and therefore no parking session fee was due. They state they entered the car park in order to collect a passenger and at no point left the vehicle parked. The appellant in their appeal to POPLA claims that the signage on site is not prominent, clear or legible and therefore no valid contract was formed between NCP and the driver. The motorist questions the authority of the operator to issue parking charge notices and claims NCP are attempting to claim the charge under railway bylaws, they claim the PCN is not a genuine pre-estimate of loss and therefore feel the parking charge should be cancelled.
We note the appellants comment however, it is the responsibility of all motorists to ensure that when they enter a car park that they have understood the terms and conditions of signage at the site and anticipated any potential delays. The appellant states that their vehicle was not parked as they were only onsite long enough to collect a passenger however during the time they were present within the car park they were making use of the private car park facilities regardless of whether they parked or not.
We note the appellants comment, had the appellant entered the site and found the entry signage was not visible enough to determine the sites Terms and Conditions; as they are aware of Terms and Conditions being in place, it is their responsibility to check for signage once parked within the car park in order to read and abide by the regulations in place. There is signage on the entrance to the car park and multiple signs located throughout the site. NCP also place signage close to the pay and display machines in order to bring the Terms and Conditions to the attention of motorists. The Size and the font on the signage is British Parking Association approved and the BPA have indeed praised NCP for displaying signs larger than they recommend in their code of practice. Unfortunately, the signage by its very nature has to be more detailed than used by other operators as NCP own the locations as well as enforcing the Terms and Conditions, which unfortunately results in more detail having to be provided. NCP is the best known brand in parking and as such generally it is known that if you enter an NCP site you will be expected to pay for parking and follow all Terms and Conditions on site.

In a similar case (4362236298) POPLA refused the motorists appeal stating - The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking.

The British Parking Association guidelines state that a motorist is permitted no longer than 10 minutes to enter, read the signs and leave if they do not wish to be bound by the sites Terms and Conditions. Unfortunately, the appellant’s vehicle was present within the car park for longer than the 10-minute grace period provided and therefore a parking session was due.

In a similar case (4361806158) the adjudicator refused the motorists appeal stating -Motorists must be allowed a grace period to decide if they wish to park on private land. If a motorist remains in the car park for a period longer than is “reasonable” for the purposes of Section 13 of the Code, POPLA would consider the motorist to have parked. Section 13 of the Code sets out its requirements for grace periods. Operators must consider the following points: “13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.” This first subsection defines a grace period. “13.2 You should allow the driver a reasonable grace period in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.” This subsection explains when a grace period is applicable. Operators should allow grace periods where a motorist is deciding whether to stay or go. From the evidence, the appellant did not spend his time in the car park deciding whether to stay or go so there is no grace period applicable.

The appellant questions the operator’s authority to manage the car park, issue and pursue motorists for the unpaid parking charge notice fees. NCP has a rolling contract with the landowner to manage and issue PCN’s at all its locations nationwide. (Please find a copy in section G) The operator has installed multiple signs and payment machines etc. throughout the car park which have been in place for a number of years previous to the issue of this PCN. It is clear that should the operator not have the required contracts and authority to manage the car park the landowner would have sought the removal of the operator from this car park through legal channels when initially the operator proceeded to manage the car park.

This Parking Charge Notice was issued in a Non Pofa car park and issued under breach of contract. The Parking Charge Notice was not issued under Bylaws. We appreciate that Railway station car parks generally issue a Penalty Charge Notice under these bylaws, however the landowner has authority to issue under Breach of Contract instead and as such register to with the British Parking Association offering the POPLA services should they wish to do so rather than issue a Penalty notice (Bylaws) which would not allow the motorist the opportunity to use the service of POPLA.

We note the appellant’s comments that the parking charge notice amount is excessive, however the vehicle was parked at this location in the site in full knowledge of the terms and conditions of the site, one of which being that if the terms and conditions were not complied with a parking charge notice for £100 would be issued; When parking on private land, a motorist enters into an agreement to abide by the terms and conditions of parking in return for parking at the site.”
The appellant states the PCN fee is not a genuine pre estimate of loss however; the Supreme Court has dismissed the appeal in the ParkingEye v Barry Beavis case in which this issue was raised. The decision provides clarity on the use of contract law for parking on private land. The ruling supported the view of the Court of Appeal judges in April this year and that of Judge Moloney that the charge should be an effective deterrent.

POPLA have refused a similar case where the Unfair Consumer Contract was questioned (Case 4360517508) -The appellant has raised The Unfair Contract Terms Act 1999. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 require that certain information is provided prior to the conclusion of the contract. However, under section 6 (2) it states that “These Regulations do not apply to contracts – (a) concluded by means of automatic vending machines or automated commercial premises”. In this case I have considered “automated commercial premises” to mean a place of business where little to no human contact is required for the conclusion and performance of a contract. Following my review of the evidence provided by the operator, I conclude that the car park I question is such premises; as motorists park their vehicles without any assistance. Accordingly, I consider that there is no requirement for the operator to provide pre-contract information to motorists before a contract can be concluded,
There is signage on the entrance to the car park and multiple signs located throughout the site. NCP also place signage close to the pay and display machines in order to bring the Terms and Conditions to the attention of motorists. The Size and the font on the signage is British Parking Association approved and the BPA have indeed praised NCP for displaying signs larger than they recommend in their code of practice. The appellant had the opportunity to observe the sites Terms and Conditions when gaining the information on how to pay and how much to pay for a parking session as the Terms and Conditions are stated on our website and on the pay and display machines on site.

Paragraph 5d of the sites Terms and Conditions clearly states In pay and display car parks you must do one of the following: which then details the paragraph 5d, which states you pay all amounts due for your parking and comply with the requirements set out at clause 10 (Ticket types and payment methods) of these Terms.

f) ANPR Pay after use – We recognise your vehicles movements in and out of the car park by ANPR technology and monitoring your vehicles VRM. If using this method, you must pay for your parking session online before 04.29 am on the day after you leave the car park (Information is available on our website

It is the responsibility of every motorist to observe and comply with the Terms and Conditions our facilities are provided and managed under and by leaving the vehicle the appellant indicated their acceptance of our displayed conditions and equally accepted that a PCN would be issued for non compliance of the displayed conditions.

To conclude the PCN has been issued correctly for a clear breach of the displayed conditions and NCP have submitted sufficient evidence to support the enforcement of the Notice.

POPLA state decisions will be based on finding of fact; the facts are that the appellant parked in clear breach of our displayed Terms and Conditions and NCP trust that POPLA will find no reasonable grounds to allow this appeal.

Coupon-mad · 10 July 2017 at 4:05PM

NCP has a rolling contract with the landowner to manage and issue PCN’s at all its locations nationwide. (Please find a copy in section G)

Did they include that? Show us that contract.

Do any of the signs in the images, talk about Railway Byelaws? Maybe the big entrance sign?

Did you admit who was driving in your first appeal, we hope not?

SannaKhan · 18 July 2017 at 10:52AM

I did unfortunately admit it in my first appeal - I hadn't discovered this website then..

They have attached a car parks outsourcing contract between london underground limited and national car parks limited - I am not sure how to attach this as the whole PDF contains some confidential information

The image of the sign does not seem to indicate any railway byelaws..

Not sure what to do from here - do I just pay the full fine?

waamo · 18 July 2017 at 1:19PM

If POPLA haven't given their verdict yet it would be madness to pay. You may very well win.

Coupon-mad · 18 July 2017 at 10:10PM

SannaKhan wrote: »

Not sure what to do from here - do I just pay the full fine?

Where did you read in the NEWBIES FAQS that there is a stage to pay (except if a person, very rarely, loses a small claim they have rightly defended)? clue- we don't pay such scams.

Where did the NEWBIES thread call it a 'fine'? Clue - it's not one.

No-one here pays NCP 'parking charges' (we paying tariffs to park but that's different).

If the POPLA appeal is lost, so what, ignore it. Same as the others who occasionally lose because they've shot several toes off by blabbing about who parked. You would have had a slam dunk 100% POPLA win, as keeper. You may still win, but who cares if not.

SannaKhan · 21 July 2017 at 10:47AM

My appeal was unsuccessful:

The terms and conditions state: “A Parking Charge Notice (PCN) will be issued for failure to comply with the Terms and Conditions”, which includes “Failure to pay all the charges due for your parking”. The operator’s case file includes photographs of the signage at the site clearly showing these terms and the amount of the parking charge at £100. The operator has also provided photographic evidence of the vehicle arriving at 20:01 and departing at 20:48, remaining for a total of 47 minutes. In addition, there are system print-outs showing no payment was made. To be clear, POPLA assess appeals on a case by case basis. We cannot and do not compare one appeal with another. The appellant has said that the operator has not complied with POFA 2012 and that the operator has not established the owner of the vehicle or issued a Notice to Keeper (NTK). The provisions of POFA 2012 are for when an operator wants to transfer liability of the PCN from the driver to the keeper. The appellant, in her initial appeal to the operator, clearly identifies herself as the driver and so the POFA 2012 is not applicable in this instance. I am also satisfied that she was notified of the charge as she was able to appeal it to the operator on 26 May 2017. The appellant has also said that the car park is not located on relevant land and adds that only the courts can impose a penalty for breach of byelaws. However, this PCN has been issued for a contractual breach, not a breach of byelaws. The PCN was also not issued under POFA 2012 and the operator is not relying on its provisions. The appellant has questioned the operator’s authority to issue and pursue PCNs. Section 7.1 of the British Parking Association (BPA) Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent)”. This “must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for”. In particular, it must say that the landowner “requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. The operator has provided POPLA with a copy of the contract between itself and the landowner, which on the balance of probability I am satisfied means the operator has the authority to issue and pursue PCNs for this car park. The appellant says the signage is “not readable” and that the amount of the parking charge is “a penalty”. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the BPA Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. POFA 2012 defines “adequate notice” as follows: “(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land”. Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. Ultimately, the appellant parked at the site but no payment was made. As such, the operator correctly issued the PCN and I must refuse this appeal.

waamo · 21 July 2017 at 10:53AM

Sit tight and see what they do next. They may well just send scary letters but not do much more.

Coupon-mad · 21 July 2017 at 2:11PM

SannaKhan wrote: »

My appeal was unsuccessful:

The terms and conditions state: “A Parking Charge Notice (PCN) will be issued for failure to comply with the Terms and Conditions”, which includes “Failure to pay all the charges due for your parking”.

The operator’s case file includes photographs of the signage at the site clearly showing these terms and the amount of the parking charge at £100. The operator has also provided photographic evidence of the vehicle arriving at 20:01 and departing at 20:48, remaining for a total of 47 minutes.

In addition, there are system print-outs showing no payment was made.

To be clear, POPLA assess appeals on a case by case basis. We cannot and do not compare one appeal with another.

The appellant has said that the operator has not complied with POFA 2012 and that the operator has not established the owner of the vehicle or issued a Notice to Keeper (NTK). The provisions of POFA 2012 are for when an operator wants to transfer liability of the PCN from the driver to the keeper.

The appellant, in her initial appeal to the operator, clearly identifies herself as the driver and so the POFA 2012 is not applicable in this instance. I am also satisfied that she was notified of the charge as she was able to appeal it to the operator on 26 May 2017.

The appellant has also said that the car park is not located on relevant land and adds that only the courts can impose a penalty for breach of byelaws. However, this PCN has been issued for a contractual breach, not a breach of byelaws. The PCN was also not issued under POFA 2012 and the operator is not relying on its provisions.

The appellant has questioned the operator’s authority to issue and pursue PCNs.

Section 7.1 of the British Parking Association (BPA) Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent)”. This “must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for”. In particular, it must say that the landowner “requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

The operator has provided POPLA with a copy of the contract between itself and the landowner, which on the balance of probability I am satisfied means the operator has the authority to issue and pursue PCNs for this car park.

The appellant says the signage is “not readable” and that the amount of the parking charge is “a penalty”. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. <snipped out the usual dire POPLA template about the Beavis case> and taking into account the use of this particular car park and the clear wording of the notices.”

As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the BPA Code of Practice.

Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

In addition to this, I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. POFA 2012 defines “adequate notice” as follows: “(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land”.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist.

Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court.

Ultimately, the appellant parked at the site but no payment was made. As such, the operator correctly issued the PCN and I must refuse this appeal.

It is a shame that you admitted who was driving in your first appeal. If you had appealed only as keeper you would have certainly won, as you could not have been held liable at all.

If NCP try a small claim in the County Court you would have defence arguments and we will help. NCP are NOT litigious, so unlikely!

Ignore any debt collector letters.

SannaKhan · 4 September 2017 at 2:53PM

I have just received my first scary letter threatening debt collectors if I do not pay £100. It only came this weekend although they had dated it 9th August!

POPLA Appeal

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