POPLA Decisions

Shrimpergarry

Thanks to the information on this site, I appealed a Parking Eye fine and have just received the following e-mail:

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 6063375250.

Parking Eye 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

Edna_Basher

Umkomaas wrote: »

Or perhaps early emerging evidence of a BPA requirement for an institutional bias towards parking operators?

In fairness to POPLA, they have responded very promptly and fairly to our letter of complaint. I genuinely believe that the causes of our concerns were simply down to the inexperience of a new team still getting to grips with the complexities of Planet PPC.

We have since received notification of two further POPLA successes against ParkingEye. The first one was once again based on a non-compliant Notice to Hirer (this time acknowledging that on the balance of probabilities, PE didn't send the hire documents as required under POFA).

The second one was more interesting; our success was based upon PE failing to demonstrate that they had the landowner's authority to operate. Although PE had included a (redacted) copy of a contract in their evidence pack, the scan quality was so poor that it was pretty much impossible to read the terms and conditions!

Umkomaas

Edna_Basher wrote: »

We have since received notification of two further POPLA successes against ParkingEye. The first one was once again based on a non-compliant Notice to Hirer (this time acknowledging that on the balance of probabilities, PE didn't send the hire documents as required under POFA).

I wonder whether PE will similarly complain to POPLA that the insinuation is they are being economical with the truth in their submission? Hmmm - thought not!

Well done in assertively pursuing this.

Samandsab

Hi there, I have had the below success from POPLA:

'An Appeal has been opened with the reference xxxxxxxx.
Civil Enforcement 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'

My appeal was as follows:
I am the Registered Keeper of the vehicle and appeal the parking charge on the following points :


1. NO KEEPER LIABILTY

There can be no keeper liability as the operator has failed to comply with the requirements of schedule 4 of The Protection of Freedoms Act ( POFA ) and consequently cannot rely on the provisions of the Act.

a. The purported parking transgression occurred on 27/10/15. No Notice to Driver as required by schedule 4 of POFA para 6(1)(a) was placed on the vehicle. The first communication on this matter was a Parking Charge Notice with an issue date of 23/11/15 that was received by post. As this was delivered by post , the creditor has failed to deliver a compliant Notice to Keeper as required by schedule 4 of POFA para 6(1)(b) within the relevant period of 14 days (schedule 4 of POFA para 9(4)(b) and 9 (5).) or a compliant Notice to Keeper as required by schedule 4 Of POFA para 6(1)(a) within the relevant period of 28-56 days ( schedule 4 of POFA para 8(4)(b) and 8(5).)

b. The Parking Charge Notice cannot be considered a compliant Notice to Keeper for the purposes of schedule 4 of POFA para 6(1)(a) or 6(1)(b) because it does not (as required by para 8(2) or para 9(2)) :

- 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;
- describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable or state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph!7(2)(b),!(c)!and!(f) In this case no reference is made on the parking charge notice that the charge resulted for purportedly failing to make payment within 10 minutes .
- specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is sent by post .
Or
if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c)!!have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i)specified in the notice to keeper, and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

In this situation the only possible parking charge unpaid is any unpaid parking tariff. No demand or method to pay £100 or £60 was provided prior to the end of the day on which the notice was sent by post so it is impossible to describe this as unpaid.
- state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
- warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
- identify the creditor and specify how and to whom payment or notification to the creditor may be made;
- specify the date on which the notice is sent (where it is sent by post) or given (in any other case).In this situation an issue date has been provided , but that gives no indication of when it was sent.

All of the above is a statutory requirement . Failure to comply with this prevents the operator from relying on the provisions of POFA to invoke Keeper Liability. As the operator has no evidence as to the identity of the driver this appeal should be upheld.




2. No authority
The appellant does not believe the operator has the authority of the landowner to issue parking charge notices or take court action in their own name to recover them. This is a requirement of the British Parking Association Code of Practice to which the operator must adhere. The appellant demands that the operator discloses a contemporaneous and unredacted copy of the contract between themselves and the landowner to show that they do. Failure to do so must result in this appeal being upheld.

3. No breach of contract
The operator is basing this claim on breach of contract for purportedly not making payment within 10 minutes of parking. The operator has provided no evidence that this is true. They have simply provided a time that they presumably assert is the beginning of any parking contract. However as this time is presumably recorded by ANPR camera :
a. There is no evidence of where this arbitrary time was recorded. There are no images to relate it to any position inside or outside the car park ..It is reasonable to assume that a driver would believe any requirement to pay within 10 minutes begins when a vehicle actually parks in a parking bay, especially when other terms and conditions on signage relate to the parking bay . In this situation the time given on the PCN is 14.11.54. The ticket was apparently purchased at 14.25 ( see attached receipt ). The appellant asserts that payment was made within 10 minutes of parking and that 3-4 minutes is a very reasonable period to enter the car park and find a parking bay as presumably the ANPR recording was captured at some point entering the car park.
b. The operator is seeking to impose a requirement on a driver to pay within 10 minutes of a time of which they are completely unaware. As the driver had no idea whatsoever when this timing was taken it is consequently impossible for a driver to know what time payment must be made by. Even if the driver realised an ANPR recording was captured they would have no idea of the time that the ANPR would be recording . Even if the driver had a watch , it and the ANPR equipment are not synchronised in any way and the operator provides no method for the driver to know what time they are using as the beginning of the 10 minute period. This contractual term is clearly unfair with reference to UTCCR (1999)
5.—(1)!A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
It is impossible to argue that the operator is acting in good faith when they are imposing a requirement on the driver to make payment within 10 minutes yet not informing them of when that requirement begins. This clearly causes an imbalance in the parties’ rights to the detriment of the driver . The term is unenforceable.

c. I demand that the operator produce evidence that the ANPR machinery was working correctly, calibrated and synchronised to the payment machine on the day in question and was serviced and maintained as required by the BPA code of practice so that the timings given can be considered entirely accurate to rely on as evidence. There is no adequate evidence that payment was not made within 10 minutes.

3. The parking charge is an unfair contractual term , not a genuine pre estimate of loss and a penalty and this case can easily be distinguished from Parking Eye v Beavis.
Payment was made for two hours parking ( see attached receipt). The maximum period the vehicle was in the car park , relying on the ANPR recordings, was 52 minutes. The operator has suffered no loss ( in reality the driver has overpaid ) , is attempting to impose a penalty and is attempting to enforce an unenforceable unfair contractual term.
a) The contract being offered by the operator is a simple consumer contract. An offer of parking is made in return for a small tariff. A contract term that imposes a sum of £100 for a purported failure to make payment of a small parking tariff within 10minutes is clearly an Unfair Term.
UTCCR (1999)
‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR –
1. Terms which have the object or effect of –
(e) Requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation;
In the Supreme Court judgment in the case of Parking Eye Eye v Beavis the £85 charge was not considered unfair but it was deemed there was not a financial consumer contract in that case. The Court of Appeal had already ruled that the contract between Parking Eye and Beavis was not a financial consumer contract as there was no financial interaction between Parking Eye and the motorist. The fact that the supposed contract in this case is quite obviously a financial consumer contract throws a very different light on the interpretation of UTCCR .This present case is consequently entirely different. The only purpose of the parking charge is to punish a motorist who inadvertently fails to make payment within 10 minutes as the motorist would be fully entitled to stay provided payment was made within 10 minutes. This is a completely different situation to Parking Eye v Beavis the judgment in which is irrelevant in this case..
It is impossible without intellectual dishonesty to argue that the operator is not attempting to impose a sum grossly disproportionate to any loss, especially when in this case is there is no loss whatsoever.. The term is therefore unfair and is not enforceable.
b) the charge is not a genuine pre estimate of loss , it is a punitive sanction for purportedly failing to pay within 10 minutes.
Again, unlike in Parking Eye v Beavis, the contract offered by the operator is a simple consumer contract. The charge is for an alleged breach of contract and must represent a genuine pre estimate of loss. It clearly does not as there is no loss from failing to pay within 10 minutes.£100 is clearly extravagant and unconscionable when the driver paid more than enough for the entirety of the stay . If the operator believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.
I refer the assessor to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between Parking Eye and the motorist.
The car park in this case is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made within 10 minutes when the vehicle would otherwise have been welcome to park as it did.
A contractual term, which imposes the requirement to pay a disproportionately large sum for purportedly failing to pay a far smaller one within 10 minutes is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. The Supreme Court did not change this analysis.This case can be clearly distinguished from that of Parking Eye v Beavis the judgment in which is irrelevant in this situation.
Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply affirms that the decision in that case was based solely on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility. As previously mentioned in this situation there is no such justification.

In the Parking Eye v Beavis at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5. The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. It can be stated as an indisputable fact that the driver would in this case , without a shadow of a doubt, never have agreed to this term, had it been negotiated in advance and with legal representation . It is indisputable that a legal professional would never advise a client to enter a contract that allowed the imposition of a grossly disproportionate charge for failure to make a much smaller charge within 10 minutes when the client had no idea when that obligation began.
4. Unclear, inadequate and non-compliant signage
POPLA is requested to check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. It is contended that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

Coupon-mad

You deserved to win that - good appeal, use of Beavis in your favour and the driver even overpaid. You exposed the entire scam.

Coupon-mad

A PE case (another one) where they backed down when they saw a 'throw the kitchen sink at it' (but relevant) POPLA appeal:

https://forums.moneysavingexpert.com/discussion/5364920

And that was an overstay in a 2 hour free retail park...like Beavis. Still cancelled.

wozza67

Just received notification of a successful appeal submitted back in October against Highview Parking (Ranger Parking Services) following an overstay in the Wembley Retail Park car park. The alleged "offence" occurred at 10:45pm on a Sunday night, not exactly prime shopping time, but they issued me with a £95 charge notice.

The NTK was sent after the 14 day period required under PoFA but they still pursued it, so my appeal was on the grounds of non-compliant NTK, not a GPOL (before the Beavis decision), unreliable ANPR equipment and no authority to issue charges as the operator is not the landowner.

The operator actually stated in their response to my appeal "We can confirm that we have the authority to act on behalf of the landowner. The onus is on the appellant to provide evidence to support his claim that we do not - if the appellant genuinely believes that we do not have such authority, they should have gone to the BPA to obtain this information".

The POPLA assessment and decision ignores all the other grounds for appeal except this one, but states that the operator has not provided any evidence that they have such authority from the landowner.

A big thank you to everyone associated with this forum and for all the advice I received and read on here prior to submitting the appeal. To say I am please to have got one over these parasites is an understatement!

---

Decision: Successful

Assessor summary of operator case
The operator’s case is that the appellant exceeded the maximum stay on site.

Assessor summary of your case
The appellant’s case is that he does not feel the Parking Charge Notice (PCN) is a Genuine Pre-estimate of Loss. The appellant does not believe the operator has the authority from the landowner to issue PCNs. The appellant believes the Notice to Keeper did not adhere to the Protection of Freedoms Act 2012 (PoFA 2012). The appellant believes the Automatic Number Plate Recognition (ANPR) cameras are unreliable.

Assessor supporting rational for decision
The appellant states he does not believe that the operator has the authority from the landowner to issue PCNs. Section 7 of the 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 land owner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” The operator has not provided POPLA with the written authorisation from the landowner. As such, I cannot confirm that the operator has the authority to pursue outstanding parking charges. Accordingly, I must allow the appeal. I note that the appellant has raised other grounds for appeal, however, as I have allowed the appeal for this reason, I did not consider them.

orfeas

From a variety of advice in this forum and others, I got a result today.

Appeal has been withdrawn by the operator
Withdrawn on 18/01/2016

Verification Code

***********

Withdrawal reasons

Please be advised this notice has been cancelled and as such no longer requires a POPLA review.

Not that it matters, but I challenged on:

1. The notice to keeper is not compliant with POFA 2012 - No Keeper Liability
2. No standing or authority to pursue charges nor form contracts with drivers - Proprietary Interest
3. The ANPR system is unreliable and neither synchronised nor accurate, there is no evidence to suggest the car has entered, parked, stayed for a period of time, and left the carpark. Further, there is no evidence that there was just one visit - Evidence
4. Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis
5. Unfair term

Umkomaas

orfeas wrote: »

From a variety of advice in this forum and others, I got a result today.

Appeal has been withdrawn by the operator
Withdrawn on 18/01/2016

Verification Code

***********

Withdrawal reasons

Please be advised this notice has been cancelled and as such no longer requires a POPLA review.

Not that it matters, but I challenged on:

1. The notice to keeper is not compliant with POFA 2012 - No Keeper Liability
2. No standing or authority to pursue charges nor form contracts with drivers - Proprietary Interest
3. The ANPR system is unreliable and neither synchronised nor accurate, there is no evidence to suggest the car has entered, parked, stayed for a period of time, and left the carpark. Further, there is no evidence that there was just one visit - Evidence
4. Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis
5. Unfair term

Well done on doing this without direct forum help - I guess you used the advice from the newbies sticky?

Can you tell us which operator please? Helps us build a knowledge base of which operators are likely to withdraw with a strong challenge.

orfeas

It was 'Civil Enforcement', carpark at Waltham Cross, behind the TFC supermarket.

Yes, the newbie sticky was very helpful, thank you for putting the time in to support folk! :-)