POPLA Decisions

teneighty

Decision Successful

Assessor Name Safoora Sagheer

Assessor summary of operator case
The operator’s case is that the vehicle registered under **** *** failed to comply with the terms and conditions of the site by displaying a non valid photocopied permit.

Assessor summary of your case
The appellant’s case is that a valid permit was issued by the letting agent and it was displayed in the vehicle.

Assessor supporting rational for decision
It is the operator’s responsibility to demonstrate to me that it has issued the Parking Charge Notice (PCN) correctly. While I note the operator’s reasons for issuing the PCN, the operator has failed to provide clear sufficient photographic evidence of the vehicle displaying a non valid photocopied permit. As such, I am unable to determine whether the appellant has failed to adhere to the terms and conditions in full. Accordingly, I must allow this appeal.


It was actually quite a clear cut case, I have no idea why UKPC dug their heels in and fought it all the way to POPLA. They were a bit naughty though, when it got to appeal they changed their story and said I had not displayed a permit at all, not even a photocopied one and submitted all their photos except the ones clearly showing the permit. I simply sent a screen shot from their own website showing the photos of the permit clearly displayed on the dashboard. So it is important to study the evidence the parking operator submits and challenge any errors with POPLA.

Thanks for the great advice on this forum. There were times when I seriously considered just paying as it was a lot of time and hassle to fight it but the stories on here gave me the confidence to keep fighting these vermin. Cheers.

Umkomaas

They were a bit naughty though, when it got to appeal they changed their story and said I had not displayed a permit at all, not even a photocopied one and submitted all their photos except the ones clearly showing the permit. I simply sent a screen shot from their own website showing the photos of the permit clearly displayed on the dashboard

No surprise there then. They have plenty of form for manipulating photographic evidence.

Edna_Basher

POPLA assessment and decision:18/03/2016
Verification Code: 2410196557
Decision: Successful
Assessor Name: Robert Harrison

Assessor summary of operator case

The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant failed to pay for parking.

Assessor summary of your case

The appellant states that the notice to hirer does not comply with POFA 2012, that there is no evidence of the alleged breach in terms and conditions, that the operator does not have the authority of the landowner to operate, that the signage is unclear, and that the ANPR system is unreliable.

Assessor supporting rational for decision

In cases where the operator wishes to transfer liability from a hire company and keeper, to the hirer, the operator must send a PCN that complies with Protection of Freedoms Act 2012 (POFA 2012). Schedule 4, Paragraph 14 of POFA 2012 states,

“(1) If (a)the creditor is by virtue of paragraph 13(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and (b) the conditions mentioned in sub-paragraph (2) below are met, the creditor may recover those charges (so far as they remain unpaid) from the hirer.

(2) The conditions are that (a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;”

The documents referred to in paragraph 13(2) are “(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement.”

Having reviewed the evidence in this case, the operator has not provided copies of the above noted documents that would demonstrate is right to transfer liability to the hirer under POFA 2012. Given that the operator has not provided this evidence to POPLA, I am unable to verify that it has complied with POFA 2012, and must conclude that it has not issued the Parking Charge Notice correctly. Given that I have allowed the appeal on this basis, I have disregarded any further points raised by the appellant.

salmosalaris

You need to be the turn to authority on these matters

motorheadache

Decision
Successful
Assessor Name
Robert Harrison

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant did not display a valid pay and display ticket.


Assessor summary of your case
The appellant states that the operator has submitted a non-compliant notice to keeper, does not have the authority of the land owner to operate on site, that the charge is not a genuine pre-estimate of loss, and that the signage is unclear.


Assessor supporting rational for decision
When it comes to parking on private land, a motorist accepts the terms and conditions in place at the site by parking their vehicle. The operator states that the appellant failed to display a valid parking ticket, and therefore it issued a Parking Charge Notice (PCN). The appellant has raised the issue of whether the operator has authority from the landowner to operate on site. When considering an appeal, POPLA refers to the British Parking Association (BPA) Code of Practice, section 7, which sets out what the landowners written authority should include. Section 7.3 states, “a the definition of the land on which you may operate, so that the boundaries of the land can be 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” I note that the operator has provided a copy of a letter from the landowner confirming that the contract to manage parking is to be extended for a period that includes the date the PCN was issued. The document however does not include all of the above noted details as required by the BPA. I therefore do not consider the evidence the operator has provided to be sufficient to support its case. Given that the operator has not provided sufficient evidence to demonstrate it has the authority of the landowner, I find that the operator has not issued the PCN correctly. As I have allowed the appeal on this basis, I have disregarded any further points raised by the appellant.

salmosalaris

Excellent
Note to everyone , quote the relevant requirements of the BPA CoP re landowner authority .
Change of CoP again ??

robonn

Hi there. Good news: a POPLA win based on a lack of Authority from the landowner (at Dorking Station, via Indigo aka VINCI Park aka Meteor Parking).

There were other criteria in the appeal, but they weren't needed. They also went beyond the Notice To Keeper (NTK) deadline, which should have gone in my favour - lots of great advice on NTKs here: https://forums.moneysavingexpert.com/discussion/5356740

Anyway, here's the full story, hopefully useful to someone else. Hats off to everyone who gave their time and expertise. You're all fantastic.

My first appeal:

I appeal the PCN referenced as follows as the keeper of this car

- your charge is not a genuine pre-estimate of loss
- the parking ticket was paid by the driver so no loss has occurred (see attached)
- you don't own the car park so have no standing
- a 'parking charge notice' cannot morph into a penalty under bye-laws
- an allegation of parking outside a bay isn't a bye-law matter
- the signs at this site are wholly misleading about bye-laws/contraventions

I suggest you cancel this ticket but if not, you are required to send me a POPLA code as promised in the wording of the 'PCN'. I remind you that the BPA Code of Practice says that 'drivers and keepers' can appeal to POPLA and I am the keeper.

The driver will not be identified and there is no lawful reason for me to help you in that regard if you allege you formed a contract with that person. You have two choices, POPLA code or cancellation.

I expect an acknowledgement of this appeal within 14 days and a reply within 35 days.

To which, they predictably declined:

Breach Code 5: Not parked correctly within a marked bay

Having reviewed the photographic evidence which is also attached, you have parked your vehicle outside of the maeked bays causing an inconvience to other carpark users.

If the car park is full, it does not entitle you to park in breach of the Terms and Conditions and alternative parking / travel arrangements must be made. It clearly states in the Terms and Conditions that a ticket does not entitle you, unless otherwise specified, to any particular space in the car park. Therefore if you wish to purchase a ticket before securing a bay, this is done at your own risk as we cannot guarantee that a space will be available.

By entering the car park you are agreeing to park in accordance with the Terms and Conditions and it is the customer's responsibility to ensure they observe the Terms and Conditions before leaving their vehicle in the car park. It clearly states that “No vehicle shall be parked so as to take up more than one space designated for parking”, “No Vehicle shall obstruct any access or circulation area within the Car Park” and “No Vehicle shall park other than within the spaces designated for parking”.

Having reviewed the circumstances surrounding the issuing of the above Penalty Charge Notice, and having considered your reasons for appeal, our decision is to uphold the Penalty Charge Notice.

So I then appealed to POPLA as follows, including photos of signage:

Dear POPLA Assessor, as the registered keeper of the vehicle above I am appealing against the parking charge above. Below are my grounds for non-liability and I would ask that all points are taken into consideration.

1) No standing or authority to neither pursue charges or form contracts with drivers. Meteor have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

Meteor are required to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. Any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

2) No genuine pre-estimate of loss. The parking charge did not fall under the category of a GPEOL on the following points:

i. The correct charge for the period in question, which was paid in full, was £6.10, with the permit valid until 27/10/15. The parking contravention charge of £90 is out of all proportion to any potential loss on the part of Meteor and therefore does not represent a genuine pre-estimate of loss.

ii. There is no loss flowing from this parking event. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

3) Unreasonable/Unfair Terms. The charge being claimed by Meteor is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

It is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff in good faith. Meteor require strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to a persons detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

4) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between Meteor and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.

The main sign says ‘failure to display a valid ticket may result in you receiving a parking charge notice.’ The driver did not contravene the sign which says nothing readable about any other contraventions at all. The only noticeable risk of getting a PCN is for not displaying a ticket, nothing else. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park) when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Meteor have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

5) Meteor have failed to establish keeper liability. Sites designated as Railways by the Secretary of State are subject to statutory control in the form of bylaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If Meteor argue otherwise then they must produce the bylaws and maps to show that this part of the Railway is somehow exempt from statutory control. The onus falls upon Meteor to demonstrate this and I put them to strict proof on this point.

Meteor have failed to serve a Notice to Keeper. It has been completely omitted, Meteor appear to have assumed it is not needed when a keeper sends reps against a windscreen ticket. But in the schedule it is clear that a NTK is a fundamental document where the Operator does not know who the driver was (and in this case there have been no admissions on that matter.) Therefore even if this was a site where bylaws affecting parking did not take precedence, Meteor have failed to establish keeper liability by forgetting the NTK.

I request that my appeal is upheld and that POPLA inform Meteor accordingly that their speculative invoice must be cancelled

Thank you for your attention
Yours faithfully,

And then I finally got the following decision from POPLA:

The appellant states that there was insufficient signage

The appellant states that the charge levied is not a genuine pre-estimate of loss nor is it proportionate or commercial justifiable and is nothing more than a disguised penalty.

The appellant states that the Notice to Keeper failed to meet the obligations of the POFA Act 2012 The appellant states that the operator does not have landowner authority

The operator states that it issued the Parking Charge Notice (PCN) on the basis that the driver failed to park correctly within a marked bay.

Section 7 of the British Parking Association (BPA) code of practice requires operators to own the land or to have written authority from the landowner to operate on the land. As the operator has failed to provide any evidence in response to this ground of appeal, it has failed to prove that it has the required authority to operate on the land in question.

I acknowledge that the appellant has raised other grounds for appeal, but as I have allowed the appeal on this basis, I have not considered them. Accordingly, I must allow the appeal.

So all good news. Not sure whether this response from POPLA shows that Indigo was just too lazy to supply evidence that they have authority from the landowner, or that they don't have it. But all's well that ends well!

Coupon-mad

It is that Indigo were too lazy to show the contract or didn't want to show it. Landowner authority strikes again!

elponce28

Decision Successful

Assessor NameLinsdey Rogers

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant stopped or waited where stopping or waiting restrictions are in force.

Assessor summary of your case
The appellant raises several grounds of appeal including, the charge is extravagant and not a Genuine Pre-estimate of Loss, they state that the Notice to keeper failed to meet the requirements of POFA to hold the keeper liable, they question landowner authority, advise that the signage at the site is insufficient and state that the car park address is not correct.

Assessor supporting rational for decision
While the appellant has raised a number of grounds for appeal, my report will focus solely on the landowner authority. Section 7 of the British Parking Association (BPA) Code of Practice requires Operators to own the land or to have written authority from the landowner to operate on the land. While I note the operator has provided a copy of their contract, it is dated 25 March 2014.I note that the PCN was issued on 10 December 2015. Within the whereas section, point 2. It states “The contract shall take effect on the date that this document is signed and shall expire 12 months later. The client may extend the term and provision of this contract by written notice to park Direct.” The operator has failed to provide any evidence that it has received any written notice to extend the contract. As such, I cannot confirm whether the operator has issued the PCN correctly.

Steshy74

Parking Eye RVI Hospital Newcastle

Decision Successful
Assessor Name Rebecca Grimes

Assessor summary of operator case the operator states that by not gaining the appropriate permit/authorisation, the Parking Charge is now payable.Assessor summary of your caseThe appellant’s case is that there was no signage on entrance to the car park to clearly state the rules of parking and the confusing bay markings not relating to the signs inside the car park. The appellant states that the operator is in breach of the signage regulations and unaware of its role which is obvious from the contradicting Parking Charge Notices. The appellant states that they do not believe they entered a contract by parking their vehicle in this car park and disputes that there is signage on entrance and around it. The appellant states that it is made even more confusing because the original PCN claims the signage in the car park clearly states that it is for permit/authorised vehicles and they did not gain the appropriate permit/authorisation to park yet the reminder states that the signage clearly states it is a pick up/drop off area and saying they have overstayed the permitted time. The appellant states they believe their vehicle was parked correctly. The appellant states that the vehicle was parked in one of the two staff bays and neither of these have signage relating to them, there are other bays in the car park, half are painted yellow and marked on the ground for ambulance and the others clearly marked ambulance cars and they have signs on each of them. The appellant states they did not read the terms and conditions on those signs as they were not parking in them, they also had the words ‘Ambulance Only’ in large print so they did not see how a sign would relate to the bays marked staff. The appellant states that on occasions over the past three years their vehicle has parked without problem, there is no sign on entrance or near the bay in which the vehicle was parked which relates to or is visible from the vehicle to make them believe it should not be parked there. Assessor supporting rational for decisionThe operator monitors the site using Automatic Number Plate Recognition (ANPR). The operator has provided photographs of the appellant’s vehicle entering the site at 18:42 before leaving at 20:43. When it comes to parking on private land, a motorist accepts the terms and conditions by parking their vehicle. The appellant states that they do not believe they entered a contract by parking their vehicle in this car park and disputes that there is signage on entrance and around it. The appellant states that it is made even more confusing because the original PCN claims the signage in the car park clearly states that it is for permit/authorised vehicles and they did not gain the appropriate permit/authorisation to park yet the reminder states that the signage clearly states it is a pick up/drop off area and saying they have overstayed the permitted time. It is evident that the Parking Charge Notice Reminder issued by the operator states that the PCN was issued due to the vehicle remaining for longer than the stay authorised or without authorisation, the Parking Charge is now payable. This contradicts the initial PCN, whereby it is stated that by not gaining the appropriate permit/authorisation, the Parking Charge is now payable. The operator states that the site in question is a drop off zone, for ambulances and patient transport vehicles only. The signage that the operator has provided, confirms; “Ambulance Cars Only” and “Authorised patient transport vehicles only”. The appellant states that the vehicle was parked in one of the two staff bays and neither of these have signage relating to them, there are other bays in the car park, half are painted yellow and marked on the ground for ambulance and the others clearly marked ambulance cars and they have signs on each of them. The appellant states they did not read the terms and conditions on those signs as they were not parking in them, they also had the words ‘Ambulance Only’ in large print so they did not see how a sign would relate to the bays marked staff. Further, the appellant has provided a photograph of the entrance signage present. The operator has failed to provide this evidence. It is evident that two signs are present; “Entrance to multi storey car park” and “Vehicles displaying valid pay & display ticket or trust parking permit only”. It is evident from reviewing the operator’s image of a site map, that when entering the site in question, there are multiple routes for a vehicle to take. As the operator is issuing a parking charge on the basis that the driver of the appellant’s vehicle did not comply with the terms and conditions of the car park, the burden of proof rests with the operator in showing that a contravention of the terms and conditions took place. The operator has failed to provide evidence of where the appellant actually parked their vehicle and as such, I am unable to determine whether the appellant was able to see or read the signage present at the site in question during the time they spent at the site. Therefore, overall I am not satisfied that, on the balance of probabilities, the operator issued the Parking Charge Notice (PCN) correctly due to the contradictory evidence present. Accordingly, the appeal must be allowed