POPLA Decisions

Gimli59

Gemini Parking

Appeal Allowed
Assessor Colin Pugh


Reasons for the Assessor's determination: While the appellant has raised numerous grounds of appeal, my report will focus solely on the operator's authority to operate on the land in question.
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. The appellant has questioned landowner authority and, as such, I must consider whether the operator has met the requirements of this section of the BPA Code of Practice.


The operator has provided a copy of the landowner contract which is dated 1 March 2014. Within the contract it states "lnitial Term, means a period of '12 month commencing on the Commencement Date". Therefore, the contract it has provided is only valid until 1 March 2015, and the date of the alleged contravention is 25 November 2015. As the operator has failed to provide evidence of current landowner authority, the operator has failed to prove that it has the required authority to operate on the land in question.


All wonderful: BUT
In my rebuttal of Gemini’s evidence pack, I stated “No copy of the agreement was attached to the evidence pack sent to the appellant. As Gemini has cynically abused the principle of disclosure, I contend that Popla should exclude any evidence re contract/agreement that may have submitted to Popla. If this evidence is to be considered by Popla, then I ask that this appeal be adjourned until such time that a copy is served on the appellant by Gemini, and that I be afforded a further 7 days thereafter to read and comment on the same before the appeal is considered.


Whilst the contract has worked to my advantage, is it right that POPLA considered it, given that no copy was supplied to the appellant? Was my rebuttal even looked at? I don’t want to “rock the boat” at POPLA by complaining to them, but is this one for IPSA?

salmosalaris

Gimli59 wrote: »

Gemini Parking

Appeal Allowed
Assessor Colin Pugh


Reasons for the Assessor's determination: While the appellant has raised numerous grounds of appeal, my report will focus solely on the operator's authority to operate on the land in question.
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. The appellant has questioned landowner authority and, as such, I must consider whether the operator has met the requirements of this section of the BPA Code of Practice.


The operator has provided a copy of the landowner contract which is dated 1 March 2014. Within the contract it states "lnitial Term, means a period of '12 month commencing on the Commencement Date". Therefore, the contract it has provided is only valid until 1 March 2015, and the date of the alleged contravention is 25 November 2015. As the operator has failed to provide evidence of current landowner authority, the operator has failed to prove that it has the required authority to operate on the land in question.


All wonderful: BUT
In my rebuttal of Gemini’s evidence pack, I stated “No copy of the agreement was attached to the evidence pack sent to the appellant. As Gemini has cynically abused the principle of disclosure, I contend that Popla should exclude any evidence re contract/agreement that may have submitted to Popla. If this evidence is to be considered by Popla, then I ask that this appeal be adjourned until such time that a copy is served on the appellant by Gemini, and that I be afforded a further 7 days thereafter to read and comment on the same before the appeal is considered.


Whilst the contract has worked to my advantage, is it right that POPLA considered it, given that no copy was supplied to the appellant? Was my rebuttal even looked at? I don’t want to “rock the boat” at POPLA by complaining to them, but is this one for IPSA?

Was your rebuttal looked at ? Probably not
Pour a glass and forget it

beefcarrot

Successfully appealed my ticket at Mousehole car park from Kernow Parking solutions.

What went in my favour was that my car was parked in the dark and rain (as shown on their "proof"), yet the photos they provided as evidence that the signs were clear and legible were taken on a bright, sunny day!

Full text:

The appellant states that he purchased a parking ticket and therefore, there is no financial loss to the landowner. The appellant states that the charge is not a genuine pre-estimate of loss and there is not contract between the landowner and the operator. The appellant has provided a copy of ticket which was purchased on 27 December 2015 at 17:40 and expired at 19:40. The appellant states that the signage is inadequate, unclear and poorly worded.

Assessor supporting rational for decision:
The operator has issued the PCN on the basis that the parking ticket was incorrectly displayed. The operator has provided photographs of the appellant’s vehicle parked at the location with the PCN attached to the windscreen. Within the photograph the upside down parking ticket is visible on the dashboard. The appellant states that he purchased a parking ticket and therefore, there is no financial loss to the landowner. The appellant states that the charge is not a genuine pre-estimate of loss and there is not contract between the landowner and the operator. The appellant has provided a copy of ticket which was purchased on 27 December 2015 at 17:40 and expired at 19:40. The appellant states that the signage is inadequate, unclear and poorly worded. The appellant states that the operators photograph showing the car park is taken in clear daylight, not the dark and rainy conditions the car was parked in. Section 18.3 of the British Parking Association (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.” The operator has provided evidence of signage at the location stating “vehicles need to display clearly a valid ticket i.e. not face down or expired, if a vehicle is parked without authorisation or has breached any parking conditions that apply parking charges will apply. A parking charge notice will cost £100.00”. The operator has failed to provide evidence to demonstrate that the signage is visible during the hours of darkness and I am unable to ascertain that the appellant would have been aware of the terms and conditions at the time of parking. As the burden of proof lies with the operator to demonstrate that the PCN was issue correctly, I must allow this appeal.

Nathan_A

Coupon-mad wrote: »

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

One of the funniest things was Premier wrote their statement with a line stating that their signs were compliant with the BPA but provided no evidence. They included some photos to attempt to point out there was plenty of signage, however, you couldn't read the signs from their own photos. I used that in my followup proving my point.


Msg to others: Always check the BPA Code of practice and measure the font size.

BiscuitMuncher

Decision
Unsuccessful

Assessor Name
Timothy Jessop

Assessor summary of operator case
The operator’s case is that the appellant’s vehicle was parked without displaying a valid permit.

Assessor summary of your case
The appellant’s case is that they are a genuine resident and as such had authority to park in their allocated parking bay. They have also stated that the operator has no authority to pursue the Parking Charge Notice (PCN) or to form a contract with motorists and as such there was no contract.

The appellant has raised that the signage within the parking area was misleading, that no notice to keeper was received and that the PCN issued does not demonstrate a Genuine Pre-estimate of Loss.

The appellant has also stated that their case cannot be compared to the case of ParkingEye Ltd. V. Beavis as there can be no loss where the car park is for residents only.

Assessor supporting rational for decision
Firstly I will note that I am satisfied that the appellant has been identified as the driver in this instance and as such the operator is not attempting to transfer liability of the PCN to the keeper.

The operator has provided a copy of its contract with the landowner. I am satisfied that this shows the operator has been granted the authority to issue and pursue PCNs on this land. The only problem with this Mr. Popla is that the site the operator refers to in all evidence packs is 13 miles away

The appellant has provided an extract of their tenancy agreement, however I cannot determine that this would give the appellant exclusive possession over the parking space, and The signage displayed within the car park states “By parking outside of a marked or allocated bay and/or not clearly displaying a valid permit which must be displayed in windscreen of vehicle or authorised by site management will result in the driver agreeing to pay a parking charge notice of £100.00…” Section 18 of the British Parking Association (BPA) Code of Practice, explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand”.

I consider the photographic evidence to show that the operator met the minimum standards set by the BPA. I consider the signage sufficient for the appellant to have read and understood the terms and conditions of parking.

Whilst the photographic evidence of the vehicle shows that in lieu of a permit, the car was displaying a note explaining that the vehicle belonged to a resident and that a permit has been applied for, the terms and conditions require either a valid permit, or authorisation from the site management. I have not been provided with any evidence that shows the appellant was granted authorisation to park without displaying a valid permit.

The appellant’s case is also that as genuine residents, they had the right to park in this area and they have provided a copy of their lease agreement in support of this. This agreement does not grant exclusive possession of the parking space, it only grants the right to park within the space. As exclusive possession is not defined for the parking space within this lease, I am satisfied that the landowner’s contract with the operator grants the operator the authority to manage the car park, and the appellant’s lease agreement would not supersede this.

As such the appellant would still be required to adhere to the terms and conditions of the car park.

The appellant says the parking charge does not demonstrate a genuine Pre-estimate of Loss The legality of parking charges has been the subject of a high profile court case, ParkingEye-V-Beavis.

The appellant has stated the case of ParkingEye-V-Beavis has no relevance in this instance as the case concerned a customer car park, and not in a resident’s only car park. Despite the differences in circumstances, I am satisfied that the operator has a genuine interest in issuing charges for contraventions of the terms and conditions, and as agreed with the landowner there is still a legitimate requirement to ensure spaces are free for residents of the property.

As, such I am satisfied the case law of ParkingEye-V-Beavis is relevant and can be applied in this case. 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.

DollyDee_2

Sounds like the assessors have been brainwashed regarding the Beavis case.

System

My appeal was successful. Please can you link to the thread "POPLA First Attempt", I do not know how to do that.

Redx

FreyasmumSOS wrote: »

My appeal was successful. Please can you link to the thread "POPLA First Attempt", I do not know how to do that.

here you go

https://forums.moneysavingexpert.com/discussion/5372373

Parking Eye

No proof of landowner authority to issue charges

appeal successful

superflygal

Dear WILLY WONKA

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 0XXXXXXXX.

APCOA Parking 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

BOOM!!!


Thanks so much Red x and Coupon Mad!! The 4 pages of appeal must have frazzled them! LOL!!!

Umkomaas

Well done SFG.

If you want to return a bit of the misery, why not invoice APCOA for the time you have wasted in defending the charge, which by their vacating of the appeals process they clearly had no right to pursue. £19 per hour is the court level.

Here's a link to whet your appetite!

http://forums.moneysavingexpert.com/showpost.php?p=66659212&postcount=9