POPLA Decisions

Ralph-y

" How a £90 ‘fine’ can arise from a resident’s vehicle being parked in that same resident’s allocated parking space, without being unlawful, is beyond me. As the burden of proof lies with the operator to demonstrate that the PCN was issue correctly, I must allow this appeal. I have not considered any other grounds of appeal as they do not have any bearing on my decision."

yet another weird decision from POPLA ......

how have these assessors been trained ?

Ralph:cool:

Nathan_A

Re: Halfords car park, Darlington




Decision: Successful


Assessor summary of operator case
The operator’s case is that the appellant had overstayed the maximum parking period by 32 minutes.


Assessor summary of your case
The appellant’s case is that the signage at the site is inadequate and the font size does not meet the requirements set out in the British Parking Association (BPA) Code of Practice.


Assessor supporting rational for decision
The operator has provided me with photographic evidence of the appellant’s vehicle entering the St Cuthberts Way Retail Car Park at 13:32 and exiting at 16:04 for a stay totalling 2 hours and 32 minutes. The operator has provided photographs of the signage that is located at the site. The signage states that “Maximum stay 2 hours…if you enter or park on this land contravening the above terms & conditions, you are agreeing to pay: Parking Charge Notice (PCN) £100”. After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle in question at the time of the relevant parking event. The operator is therefore pursuing the appellant as the Registered Keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The operator has provided me with a copy of the Notice to Keeper sent to the appellant. As the Driver of the vehicle has not been identified, the Notice to Keeper will need to comply with section 9 of PoFA 2012. Having reviewed the evidence provided by the operator, I am satisfied that the Notice to Keeper has complied with the requirements of PoFA 2012. Therefore, I am satisfied that the operator can transfer the liability for the unpaid parking charge to the registered keeper of the vehicle. The appellant states that the signs are inadequate and the font size does not meet the requirements set out in the BPA Code of Practice. The appellant has provided photographs of the signs along with a tape measure to show the size of the font. The BPA Code of Practice Appendix B, states that the font size should be a minimum of 60mm. The photographs provided by the parking appellant shows that the font size on the sign is 25mm. Therefore, the signage has failed to meet the requirements of the BPA Code of Practice.

Umkomaas

Well done Nathan_A.

And who said size doesn't matter? :rotfl:

Ralph-y

well done ....

but


"The operator has provided me with a copy of the Notice to Keeper sent to the appellant. As the Driver of the vehicle has not been identified, the Notice to Keeper will need to comply with section 9 of PoFA 2012. Having reviewed the evidence provided by the operator, I am satisfied that the Notice to Keeper has complied with the requirements of PoFA 2012. Therefore, I am satisfied that the operator can transfer the liability for the unpaid parking charge to the registered keeper of the vehicle. The appellant states that the signs are inadequate and the font size does not meet the requirements set out in the BPA Code of Practice. The appellant has provided photographs of the signs along with a tape measure to show the size of the font. The BPA Code of Practice Appendix B, states that the font size should be a minimum of 60mm. The photographs provided by the parking appellant shows that the font size on the sign is 25mm. Therefore, the signage has failed to meet the requirements of the BPA Code of Practice."

so the notice to keeper under PoFA 2012 was correct ? :rotfl:

I bet it was not !

Ralph:cool:

C4WRX

Decision Successful
Assessor NameEileen Ioannou
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) to the appellant for parking without purchasing a valid ticket.

Assessor summary of your case
The appellant states that he was the registered keeper of the vehicle however the charge is not a genuine pre-estimate of loss, that there is no contract with the landowner, the notice to keeper was not properly given under the Protection of Freedom Act (2012) with no keeper liability. In addition the appellant states that the Automatic Number Plate (ANPR) system is unreliable and non-compliant or that there is planning consent for ANPR at the site. Lastly the appellant commented that there was no contract formed with the operator as the signage is unclear.

Assessor supporting rational for decision
The appellant states that he was the registered keeper of the vehicle however the charge is not a genuine pre-estimate of loss, that there is no contract with the landowner, the notice to keeper was not properly given under the Protection of Freedom Act (2012) with no keeper liability. In addition the appellant states that the Automatic Number Plate (ANPR) system is unreliable and non-compliant or that there is planning consent for ANPR at the site. Lastly the appellant commented that there was no contract formed with the operator as the signage is unclear. In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the (PoFA 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The appellant has raised a ground for appeal advising that he was the registered keeper, raised various issues for consideration. However I will concentrate on the POFA 2012. As the driver of the vehicle was not known when the incident took place, a notice to keeper was issued. The notice to keeper must follow the strict process in line with POFA 2012. Under the POFA 2012 guidelines, section 9 (f) states: “Warn the keeper that if, after the period of 28 days beginning 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 the current address for the service of 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.” After reviewing the notice to keeper sent to the appellant, it does not state that if the parking charge has not been paid in full and the name and address of the driver given, then the operator has the right to recover the parking charge from the registered keeper of the vehicle. From this evidence POFA 2012 has not been followed correctly, therefore the liability for the parking charge has not been transferred from the driver of the vehicle to the keeper of the vehicle. Accordingly this appeal should be allowed.

C4WRX

DecisionUnsuccessful
Assessor NameCarly Law
Assessor summary of operator case
The operator’s case is that the Parking Charge Notice (PCN) was issued as the appellant’s vehicle was on site for two hours and two minutes, without making payment to park.

Assessor summary of your case
The appellant has raised several grounds for appeal. These are as follows: 1. Not a genuine pre estimate of loss – An offer of parking for a set sum was made in return for payment. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable. 2. Contract with the landowner – The appellant states that the operator does not own nor have any interest or assignment of title of the land in question. As such, he does not believe that the operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. The appellant says that he requires sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner. 3. Notice to Keeper not properly given under POFA 2012 – no keeper liability: The appellant states that this was a Pay and Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the Parking Charge Notice (PCN). He says that due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed. The appellant states that the Notice to Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay. It does not create any certainty of terms 4. Unreliable, unsynchronised and non-compliant Automatic Number Plate Recognition (ANPR) system; Under paragraph 21.3 of the British Parking Association’s (BPA) Code of Practice (CoP), parking companies are required to ensure ANPR equipment is maintained and is in correct working order. The appellant states that they require the operator to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. He states that as the parking charge is founded entirely on two photos of the his vehicle entering and leaving the car park at specific times, it is vital that the operator produces evidence in response to these points. 5. ANPR usage: Under paragraph 21.1 of the BPA Code of Practice it is stated: '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 cameras for.' 6. Unclear and non-compliant signage, forming no contract with driver; The appellant states that due to their awkward position and the barely legible size of the small print, the signs in this car park are very hard to read. He contends that the signs and any core parking terms that the operator are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. 7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system; The appellant states that some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions, chargeable regimes and installation of ANPR systems. He wants the operator to provide proof that it has planning consent.

Assessor supporting rational for decision
The operator has provided me with photographic evidence of the terms and conditions as displayed throughout the site, which state “Parking tariffs apply 24 hours a day, 7 days a week, You can purchase additional time (if required) at the payment machines or by phone before leaving” and “Failure to comply with the terms and conditions will result in a Parking Charge of: £100”. The appellant has raised several grounds for appeal. I have addressed each of these below: Contract with the landowner: ParkingEye have produced a witness statement, signed by a representative of the landowner, stating that the operator had the appropriate authority of the landowner to operate in the car park on the date in question.. I am satisfied this meets the criteria to show it has the authority to operate on this land. An operator does not need to provide a full contract due to this containing commercially sensitive information. This meets the criteria set out in the BPA Code of Practice, section 7. Notice to Keeper; I have reviewed the Notice to Keeper and I am satisfied that the operator has fully adhered to the Protection of Freedoms Act 2012. Unreliable, unsynchronised and non-compliant Automatic Number Plate Recognition (ANPR) system; The British Parking Association audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate. Independent research has found that the technology is generally accurate. As the appellant is advising he believes that the ANPR system is incorrect, I would expect him to provide evidence to demonstrate this. ANPR usage: I note the appellant says “Under paragraph 21.1 of the BPA Code of Practice it is stated: '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 cameras for.' While I recognise that the signage does not state this, I do not consider that this prevented the appellant from adhering to the terms and conditions of the car park. If the appellant had concerns about the validity of the signage and did not feel that, as a result, they could not comply with the terms and conditions in force, they had the opportunity to reject the contract by not parking in the car park.. Unclear and non-compliant signage, forming no contract with driver; I am satisfied the signs meet the standards set out by BPA. There are 33 signs around the car park site. The operator has provided photographs of signs around the site. They have provided close up photographs of the signs, which I am satisfied they match those in the car park. It is fair to assume the driver of the vehicle would have had plenty of opportunity to read the signs. Proof of planning consent for current parking conditions, chargeable regime and ANPR system; POPLA’s remit is to establish if a Parking Charge Notice has been issued correctly by the operator in accordance with the conditions of the contract. The operator having the relevant planning permission does not have an impact on the appellant’s ability to adhere to the terms and conditions of the car park. If the appellant has concerns about the site having the correct planning permission in place, he should raise this with his local council. Not a genuine pre estimate of loss; 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. Within Section 18.1 of the BPA Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. 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 states, “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. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” 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. As the appellant has remained on the site for two hours and not made payment to park, he has not met the terms and conditions of the car park. Accordingly, I must refuse this appeal.

Ralph-y

WHF

"An operator does not need to provide a full contract due to this containing commercially sensitive information."

"The British Parking Association audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate."

" 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 cameras for.' While I recognise that the signage does not state this, I do not consider that this prevented the appellant from adhering to the terms and conditions of the car park."

"I am satisfied the signs meet the standards set out by BPA. "

"While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court."

other idiosyncratic / nonsensical / dubious statements are available ...

again WHF is going on at POPLA and who does the training ?

Ralph:cool:

Edna_Basher

I guess it had to happen sooner or later, especially in view of some of the dodgy decisions coming out of “new” POPLA at the moment.

The team of POPLA assessors seem to be busy copying and pasting their decisions - at the expense of doing too much thinking about what they are actually writing.

In this particular case, the vehicle in question was owned rather than leased, meaning that our usual non-compliant Notice to Hirer route to cancellation was not available.

The car park in question belongs to an NHS Health Centre which although very small, shares some space with a neighbouring pub. Despite this being a shared site, the entrance sign states "doctors and blue badge holders only beyond this point".

ParkingEye’s ANPR cameras capture pictures of vehicles entering the shared site and the pictures contained in ParkingEye’s evidence pack demonstrate that it is quite possible for a driver to enter the site and park outside the pub without ever seeing a ParkingEye sign (there are no signs outside the pub).

We went to into quite some detail to rebut ParkingEye’s evidence pack. However, given the absence of the assessor’s reference to any of our rebuttal points, I suspect that our rebuttal was not even considered (this being despite us sending three reminders to ensure that it had been added to our case file).

Date: 22 March 2016
Decision: Unsuccessful
Assessor Name: Rochelle Merritt

Assessor summary of operator case

The operator’s case is that the vehicle had over stayed the time allowed by 25 minutes

Assessor summary of your case

The appellant has raised that the Notice to Keeper that was not fully compliant with the requirements of the POFA and consequently it has forfeited its right to claim Keeper Liability. The appellant has raised that the operator has provided no evidence to demonstrate that the vehicle was ever parked. The appellant has raised that the operator does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park. The appellant has raised that the car park signage was inadequate. The appellant states the car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA (subject to its compliance with the requirements of POFA) to pursue the vehicle’s keeper for the parking charge in the event that the driver did not pay the charge. The appellant has raised the charge is extravagant and unconscionable and does not represent a Genuine Pre-Estimate of Loss that the landholder would have suffered as a consequence of the alleged trespass.

Assessor supporting rational [sic] for decision

The case is that the vehicle was parked in the car park for 25 minutes and had only paid for two hours. The operator has sent me photographic evidence of the signs and signage plan of the site and I am accepting the signage was sufficient.

The operator has also sent me Automatic Number Plate Recognition (ANPR) of the vehicle entering the car park at 14:21 and exiting at 14:47 and I am satisfied with the evidence provided. The operator’s terms and conditions are clear. I am satisfied that the as the vehicle stayed in the car parked for the amount of time that it has whether parked or not has accepted the terms or conditions and thus formed a contract with the operator.

I have been sent landowner authority and I am satisfied with this evidence. The Notice to Keeper is compliant with POFA.

The appellant has raised landowner authority, Genuine Pre-Estimate of Loss and Section 4 of the Protection of Freedoms Act. I am satisfied that the operator has satisfied the requirements of Schedule 4 of the Protection of Freedoms Act and the BPA Code of Practice. The terms and conditions have not been met and I can conclude that the Parking Charge Notice was issued correctly.

The appellant says the parking charge does not represent a genuine pre-estimate of loss and did not cost the landowner £100 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.” 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 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.


The assessor’s determination is riddled with anomalies. For example:

• “The operator’s case is that the vehicle had over stayed the time allowed by 25 minutes” – this is not correct; the operator’s case is that the vehicle was parked without authorisation (i.e. alleged trespassing).

• “The case is that the vehicle was parked in the car park for 25 minutes and had only paid for two hours” – this is not correct; notwithstanding the assessor’s terrible maths, no parking was paid for because it was not a paid-for car park.

• “..... thus formed a contract with the operator” – this is not correct; this was a case of alleged trespass where no contract could possibly have been formed.

• “I have been sent landowner authority and I am satisfied with this evidence” – I’m unsure why; the landowner authority was merely a witness statement pre-printed by ParkingEye and signed by someone who wasn’t even an employee of the stated landowner.

• “The Notice to Keeper is compliant with POFA” – this is not correct.

• “I am accepting the signage was sufficient” – I’m unsure why; our rebuttal clearly highlighted how and why the signage was insufficient, including how the main entrance sign was obscured by a tree, how there were no signs in the pub’s part of the car park and also how the signs did not properly explain what the ANPR data would be used for.

• “The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin” – this is not correct for parking contracts with the NHS; under NHS rules, ParkingEye’s running costs and profit margin must be covered by a fee paid by the NHS body, not through extravagant parking charges levied against errant motorists.

• “Although the charge may not be a genuine pre-estimate of loss....” – therefore, given that this was a case of alleged trespass the charge must be invalid. QED.

I guess our next step will be to lodge a complaint with POPLA's lead adjudicator and also escalate the matter to ISPA.

Coupon-mad

Umkomaas wrote: »

Well done Nathan_A.

And who said size doesn't matter? :rotfl:

Hahaha!

This was Premier Park so they will be very miffed. We'll have to advise people to take a tape measure to their signs in future because they DO try to issue POFA NTKs (which aren't awful) and POPLA are clearly not going to find against them on keeper liability.

:T

Coupon-mad

Edna_Basher wrote: »

I guess our next step will be to lodge a complaint with POPLA's lead adjudicator and also escalate the matter to ISPA.

Yes, certainly.

And C4WRX needs to email a complaint about that inconsistent ParkingEye decision where this point which has WON POPLA appeals in its own right was admitted to be an issue but erroneously dismissed by this Assessor as unimportant.

This needs a review and complaint to POPLA and ISPA because it is so inconsistent with other Assessors:

ANPR usage: I note the appellant says “Under paragraph 21.1 of the BPA Code of Practice it is stated: '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 cameras for.' While I recognise that the signage does not state this, I do not consider that this prevented the appellant from adhering to the terms and conditions of the car park.

Rubbish like that leaves an appellant open to be sued by ParkingEye, yet if any another Assessor had seen this they would have upheld the appeal because several have been published in the public domain where this single appeal point (no signs stating how the ANPR data will be used) was the winning point of appeal.