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  • FIRST POST
    • Quizzled
    • By Quizzled 16th Sep 17, 7:05 AM
    • 5Posts
    • 3Thanks
    Quizzled
    POPLA Appeal Unsuccessful, Advice Please.
    • #1
    • 16th Sep 17, 7:05 AM
    POPLA Appeal Unsuccessful, Advice Please. 16th Sep 17 at 7:05 AM
    I've done hours of reading and had some really helpful advice on here before I submitted my POPLA appeal but clearly didn't do something right as I've had had my appeal refused.

    I am bemused as to why the 'absence of an entrance sign' point I made about this car park (adjacent to another one not controlled by PE) has been dismissed with the assessor claiming my photographs must be an exit sign and that the driver must have entered through the exit! Definitely not the case.

    I'd really appreciate some advice on what to do next please.

    Decision: Unsuccessful
    Assessor Name: Esth** Sarg****
    Assessor summary of operator case:
    The operator issued a Parking Charge Notice (PCN) because the motorist remained at the car park for longer than the stay authorised.

    Assessor summary of your case:
    The appellant has raised several grounds of appeal, including; inadequate signage, no grace period, Automatic Number Plate Recognition (ANPR) notification and accuracy, no authority to issue PCNs on behalf of the landowner, unfair terms. The appellant has provided photographic evidence in support of their appeal.

    Reasons for the Assessor’s determination.
    Upon review of the evidence, I am not satisfied that the driver has been identified sufficiently. In order to transfer liability from the driver, to the registered keeper of the vehicle, the strict provisions laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. Upon review of the PCN, I am satisfied that the operator has complied with PoFA 2012. As such, the keeper is now liable for the charge.

    The terms and conditions of the site state: “3 hour max stay…Failure to comply with this will result in a Parking Charge of: £100…Parking limited to 3 hours”.
    The operator issued the PCN to vehicle registration xxxx xxx because the motorist remained at the car park for longer than the stay authorised.

    The site operates ANPR cameras. The cameras captured the appellant entering the site at 19:15, exiting at 22:33 on 30 July 2017; the period of stay was three hours and 17 minutes.
    The appellant has requested the operator provide a full contract with the landowner to evidence authority to issue and pursue PCNs at the site. The appellant states a witness statement is not sufficient.

    Section 7.3 of the British Parking Association (BPA) Code of Practice states: “The written authorisation must also set out: a. the definition of the land on which you may operate, so that the boundaries of the land are clearly defined b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement d. who has the responsibility for putting up and maintaining signs e. the definition of the services provided by each party to the agreement”.
    The operator has provided a copy of the contract with the landowner. I am satisfied the contract covers the relevant sections required. As the contract states that the contract shall automatically renew for the equivalent of the initial period if not terminated, I consider the evidence shows the operator was given authority to issue PCNs on the date of the event.
    The appellant states the signage is unclear and inadequate. They state there are no entrance signs of the operator’s. The appellant states there are two places where motorists can go from one car park to another. They state one of these places has no signage. They state the text on signage is too small to read from a moving vehicle. They state the signage is set high and back from the stopping position indicated by the road markings.
    Section 18.2 of the BPA Code of Practice states: “Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of”. Additionally, section 18.3 of the BPA Code of Practice states: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

    The operator has provided a site map to show the locations of the 10 signs at the site. The site map also shows there is one entrance to the site, and two exits. Upon review of the operator’s evidence and appellant’s grounds, I am satisfied one of the exits is the access way that the appellant states does not have an entrance sign. As such, I am satisfied that it is not necessary to have entrance signs placed there, as vehicles should not access the car park through this point.

    The operator has shown the sign at the designated entrance states a three hour maximum stay applies and refers motorist to view signage within the car park for further details. I am satisfied the text is of a reasonable size to bring to the attention of motorists in their vehicles. However, if entrance signage is missed for any reason, the terms and conditions signs within the site form the contract with the motorist.

    Upon review of the photographic evidence from both the operator and the appellant, I am satisfied the signage is reasonably large and brightly coloured to capture the attention of motorists. I am satisfied that the terms are clearly displayed and the term regarding the maximum stay is made particularly prominent in large, bold text.

    I do not consider that the signage is set unreasonably high and consider it is possible to clarify the text. It is not a requirement that motorists should be able to view the conditions signage within the site from their vehicle. As such, motorists must ensure they seek signage at the car park to read and comply with the terms.
    Upon review of the state of signage and its locations throughout the site, I am satisfied that motorists are given sufficient opportunity to become aware of it and read the terms. As I am satisfied the signage is clear for this site, I consider the change between adjacent car parks should be clear to motorists.

    The appellant states the signage has small icons to indicate ANPR cameras are in use. They state they do not consider many people would understand the acronym used for the system. The appellant states the operator has failed to show them evidence that the cameras are accurate and synchronised and that they comply with the BPA Code of Practice.

    Section 21.1 of the BPA Code of Practice states: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR camera for”. Additionally, section 21.3 of the BPA Code of Practice states: “You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with”.
    The operator states that they have: “developed a robust process for handling the data and ensuring the accuracy of the system. ParkingEye is regularly required to provide data taken from these ANPR cameras for Police investigations.
    Once ParkingEye has installed the cameras, signage and other technology at a site, we will test the system extensively before Parking Charges are issued on site. This involves allowing the site to function normally without Parking Charges being issued, to ensure that the system is functioning correctly”
    Further, they state that: “all ANPR equipment is monitored and kept in good working order. A central team of trained Technical Support Engineers proactively monitor the performance of all systems to ensure the accuracy of data collected. Automated monitoring and alerting ensure potential issues are highlighted and dealt with quickly along with data management routines to ensure affected data does not result in a Parking Charge being issued. Dedicated mobile engineers respond to physical faults, which require on-site resolution with testing periods to ensure equipment is configured and working to our high standards. Equipment is selected and deployed to ensure a reliable and robust solution which performs consistently and accurately”. I do not consider that the appellant has made clear why it believes the stay recorded by ANPR cameras is inaccurate. The appellant has not provided any evidence to support this, such as time and date stamped images of the vehicle at a different site between the recorded entry and exit. As such, I do not consider I have been given sufficient reason to doubt the accuracy of the recorded stay and must assume the operator’s evidence is correct.

    I am satisfied the recognised symbol for the ANPR cameras is clearly displayed on all signage. Additionally, the signage states that: £By entering this private car park, you consent, for the purpose of car park management to: the capturing of photographs of the vehicle and registration by the ANPR cameras…you consent to the processing of this data to request registered keeper details from the DVLA, where the Parking Contract has not been adhered to”. Further, I do not consider that the notification of the ANPR system should affect the motorist’s ability to comply with the maximum stay in the first instance.

    The appellant states no grace period was given. They state when entering the car park, the driver would have required some time to move through congestion, park and look for signs. The appellant states when the motorist was leaving, many other people were leaving an event in Caversham and there was a queue to leave the car park. They state the additional time at the end of the parking session would have fallen well within a 10 minute grace period.
    Section 13.4 of the British Parking Association Code of Practice states: “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes”. As this site is a maximum free stay car park, a grace period does not apply. After parking and confirming the terms and conditions, motorists are expected to consider the time from entry within the maximum permitted stay. Therefore, the motorist overstayed the permitted time by 17 minutes on the date of the event.

    The operator has confirmed it operates a grace period of 10 minutes, in line with the BPA Code of Practice. The appellant has already confirmed that it took the motorist less than 10 minutes to leave the site when they returned to the vehicle. As such, I am satisfied that it is not necessary

    to consider a grace period longer than the 10 minutes stipulated by the BPA Code of Practice. The appellant states the charge that was levied was an unfair term, as addressed in the Consumer Rights Act 2015. They state a £100 charge for 17 minutes overstay is disproportionate.

    The legality of parking charges has been the subject of a high profile court case, ParkingEye-vBeavis. 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 Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.”

    Furthermore, Section 18.3 of the BPA Code of Practice, as referenced previously, also addresses the minimum standards for signage. As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the 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. The Act then moved on to define “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 subparagraph (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/is not sufficient to bring the parking charge to the attention of the motorist. The unfairness in contracts aspect was dealt with in Beavis v ParkingEye. They considered the Unfair Terms in Consumer Contract Regulations 1999, which imposes a fairness test. Their conclusion was: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations.”
    We consider a charge of £85 to be in the region of £100 and therefore not unfair for the purposes of contracts.
    Therefore, having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine preestimate 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.

    I note the appellant has provided further comments. However, I consider these reiterate their grounds of appeal, which I have already addressed.

    When deciding to park, it is the motorist’s responsibility to be aware of the terms and conditions of the car park and comply with these. On this occasion, the motorist failed to adhere to these by remaining at the car park for longer than the stay authorised. As such, I am satisfied that the PCN has been issued correctly.

    Accordingly, I must refuse the appeal.
Page 1
    • Quentin
    • By Quentin 16th Sep 17, 8:50 AM
    • 32,782 Posts
    • 16,806 Thanks
    Quentin
    • #2
    • 16th Sep 17, 8:50 AM
    • #2
    • 16th Sep 17, 8:50 AM
    You should keep everything in the one thread.

    All the next steps in this game are set out in the newbies FAQ thread.

    Following s rejected second stage appeal you are in the debt collectors stage which you can safely ignore.

    Wait and see if you get a lbcca or court correspondence and come back for advice on how to defend these should you need to

    They have 6 years to take court action
    • Coupon-mad
    • By Coupon-mad 16th Sep 17, 2:15 PM
    • 50,024 Posts
    • 63,421 Thanks
    Coupon-mad
    • #3
    • 16th Sep 17, 2:15 PM
    • #3
    • 16th Sep 17, 2:15 PM
    You did everything right but the Assessor has bent over backwards to use templates to refuse the appeal, even putting at one point, this lie:

    As this site is a maximum free stay car park, a grace period does not apply.
    Not true. Completely wrong. she's even said quoted the ambiguious 'failure to comply with THIS'' sign:

    Failure to comply with this will result in a Parking Charge of: £100…Parking limited to 3 hours”.
    So if parking is limited to 3 hours then the driver is entitled to expect the 'observation period' of 5 - 10 mins on arrival, and the separate 'grace period' of AT LEAST ten minutes to leave, to be something POPLA Assessors should know about:

    http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

    and this ambiguous template reply, she didn't even bother to change either way:

    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/is not sufficient to bring the parking charge to the attention of the motorist.
    And as you say, she has decided that the access way is only an exit, when you've shown photos showing it is an entrance. Why did she favour PE's aerial mock-up with dots on it (nothing official) to your photos of that access route (the word access means to go in/through, after all!).

    The 'failure to comply with this' wording caused defended cases to be won v ParkingEye:

    http://parking-prankster.blogspot.co.uk/2016/01/did-parkingeye-deceive-supreme-court.html

    The judgments of ParkingEye v Collins-Daniel, and ParkingEye v Lemon and Harris, are examples that are linked there by the Parking Prankster.
    Last edited by Coupon-mad; 16-09-2017 at 2:19 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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