POPLA Decisions

manuraheel

Hey everyone just to let you know my appeal to POPLA was unsuccessful. I am posting both my appeal and their decisions just to help out others.



"
Dear POPLA Adjudicator

As a law abiding citizen who always pays her way, I was extremely upset to hear of a £100 ‘parking charge notice’ displayed on the vehicle of which I am registered keeper for. The vehicle in question was parked in a residential car park and does hold a valid permit.

As the registered keeper I wish to appeal a recent parking charge from P4PARKING as I am not liable for this charge. Firstly I would like to mention a few errors on the rejection letter to my appeal to P4PARKING:

• The rejection letter has been dated XXXX which is a date before the PCN was issued.
• They have mentioned the date I submitted the appeal as XXXX which is in the future.


I submit the points below to show that I am not liable for the parking charge:
• No NTK was issued as required by schedule 4 of POFA - No Keeper Liability
• Vehicle issued the PCN is considered to be a genuine resident
• Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
• No genuine pre-estimate of loss
• No standing or authority to pursue charges nor form contracts with drivers
• No contract between driver and P4PARKING

1. No NTK was issued as required by schedule 4 of POFA - No Keeper Liability
To date I have not been issued a Notice to Keeper (NTK) by P4PARKING. As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (POFA).

The alleged infringement occurred on XXX and from my understanding the NTK was required to reach me by XXX. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that P4PARKING provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.



2. Vehicle issued the PCN is considered to be a genuine resident
With regards to the PCN, the vehicle in question is in possession of a valid permit at the time of contravention. If for example all of the spaces were occupied, regardless of whether permits were displayed, P4PARKING would still have incurred zero loss. When empty, these spaces cannot be re-offered in exchange for fees to those who have no association with the buildings, making the charges punitive.

The reason landowners employ parking companies are to stop non-residents abusing the car park in question. Genuine residents should not be deterred from using the parking spaces.

3. Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.
After inspecting the signs after the driver received the charge, I noted

• The signs are not prominent and not placed copiously around the site.
• picture taken by me from the entrance, no obvious signs indicating a visitor/resident needs a permit.

b) Two signs have been placed together one which says “permit holder only” and the other “visitors parking only”, I believe these signs are ambiguous and the terms unclear to drivers before they park. It cannot be assumed that the driver has had any opportunity to read any other terms as they may not be the resident. Visitors can park according to the signs so there would be no prior knowledge of any parking charge risk, the signs must be very clear and show the charge itself in large lettering readable in the dark. The signs were also unlit which makes them very difficult to read in the hours of darkness especially during winter. These were easily missed as they are on one side of the car park only ( Right side where the car was parked,there are no lights, refer to picture above), with low height which could easily be concealed by cars.

• both pictures below have been provided by P4PARKING, they have not been cropped or edited by me at all. As you can see in the first picture how dark it is and no warning signs are visible around the car. The second picture shows both the signs which have been taken with a bright flash and is a close up yet the terms are not readable and parking charge not visible


The notices are away from any light source in the car park area and the parking charge of £100 is in small font which is not even readable from the evidence provided to me by P4PARKING. Inadequate notice of a 'parking charge' means there was no 'relevant obligation' and no relevant contract, contrary to 2(3) of schedule 4 of the POFA.

This view is supported in the Beavis decision by Lord Mance at 191:
''...The judge and Court of Appeal (para 28) also found some support in this Act for the view that charges of this kind are not to be regarded as unenforceable. In my view, that is a misreading of the Act. The Act merely “makes provision for the recovery of unpaid parking charges from the keeper or hirer of a vehicle” (section 56), in circumstances “where (a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and (b) those charges have not been paid in full” (Schedule 4, paragraph 1). The reference to a relevant “obligation” does not exclude the penalty doctrine. On the contrary, if a charge stipulated contractually is a penalty, there will be no obligation.’’

Any photos supplied by P4PARKING to POPLA will no doubt show the signage in daylight or with the misleading aid of a close up camera with an extremely bright flash.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.


4. No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. P4PARKING must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so P4PARKING have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

P4PARKING cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe P4PARKING are likely to be paid by their client - so any such payment income must be balanced within the breakdown P4PARKING supply and must be shown in the contract, which leads me to appeal point 5 below.

5. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, P4PARKING must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put P4PARKING to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between P4PARKING and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to P4PARKING.

6. No contract between driver and P4PARKING
As per the property lease signed and agreed to in 2015 there is no mention of P4PARKING, or any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park. As per appeal point 5 above, the vehicle was parked while observing the requirements of the property lease therefore there is no contract between the keeper and P4PARKING.



This concludes my POPLA appeal.

Yours faithfully,
"



POPLA DECISION



DecisionUnsuccessful
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 display a valid permit.

Assessor summary of your case
The appellant states that keeper liability has not been established, that the signage is insufficient to make the terms and conditions known to motorists, that there is a permit for the vehicle, that the operator does not have the authority of the landowner to issue parking charges, and that the charge is not a genuine pre-estimate of loss.

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. I note that the operator has issued a notice to driver, and as such is pursuing the driver for payment of the PCN. The PCN is payable by the driver. The appellant is appealing the PCN as keeper of the vehicle. The Protection of Freedoms Act (PoFA) 2012, paragraph 4 (1) states “the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”. The operator has the right to pursue the registered keeper of the vehicle if payment of the PCN remains unpaid after 28 days. The operator has not sought keeper liability. I would also note that as the appellant has indicated that they are aware of the drivers identity, they should have provided these details to the operator if they did not wish to assume liability for the charge. The operator has provided evidence of a contract between it and the landowner. I have reviewed this document and am satisfied that it allows the operator to issue Parking Charge Notices (PCN) and pursue the costs. The appellant has raised signage as an issue. They state that the signage is not readily visible at night and is ambiguous. I note that the appellant has made this statement despite not being the driver at the time. Further to this, the appellant states that the vehicle in question is in possession of a valid permit, and therefore has a right to park on site. I note that the appellants vehicle is parked directly in front of the signage that the operator has highlighted. This signage notes “your vehicle may also be issued with a Parking Charge Notice if found; parked without displaying a valid estate parking permit”. Given that the appellants vehicle is parked within clear site of a sign, and the appellant indicated the vehicle has a permit, I consider the appellant to be sufficiently aware of the parking restrictions, and that the signage on site is sufficient to note the contract being entered into. While disputing any contract was entered into, the appellant has failed to provide evidence of their lease that demonstrates a different parking contract is in force to the one demonstrated on the signage. I therefore can only consider the signage when it comes to a contract in this case. The appellant says the parking charge does not represent a genuine pre-estimate of loss of loss to the landowner, as the vehicle has a permit to park on site. 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. Having reviewed the grounds for appeal, I am satisfied that the operator has issued the PCN correctly.

henrik777

manuraheel wrote: »

Hey everyone just to let you know my appeal to POPLA was unsuccessful. I am posting both my appeal and their decisions just to help out others.



"
Dear POPLA Adjudicator

As a law abiding citizen who always pays her way, I was extremely upset to hear of a £100 ‘parking charge notice’ displayed on the vehicle of which I am registered keeper for. The vehicle in question was parked in a residential car park and does hold a valid permit.

As the registered keeper I wish to appeal a recent parking charge from P4PARKING as I am not liable for this charge. Firstly I would like to mention a few errors on the rejection letter to my appeal to P4PARKING:

• The rejection letter has been dated XXXX which is a date before the PCN was issued.
• They have mentioned the date I submitted the appeal as XXXX which is in the future.


I submit the points below to show that I am not liable for the parking charge:
• No NTK was issued as required by schedule 4 of POFA - No Keeper Liability
• Vehicle issued the PCN is considered to be a genuine resident
• Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
• No genuine pre-estimate of loss
• No standing or authority to pursue charges nor form contracts with drivers
• No contract between driver and P4PARKING

1. No NTK was issued as required by schedule 4 of POFA - No Keeper Liability
To date I have not been issued a Notice to Keeper (NTK) by P4PARKING. As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (POFA).

The alleged infringement occurred on XXX and from my understanding the NTK was required to reach me by XXX. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that P4PARKING provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.



2. Vehicle issued the PCN is considered to be a genuine resident
With regards to the PCN, the vehicle in question is in possession of a valid permit at the time of contravention. If for example all of the spaces were occupied, regardless of whether permits were displayed, P4PARKING would still have incurred zero loss. When empty, these spaces cannot be re-offered in exchange for fees to those who have no association with the buildings, making the charges punitive.

The reason landowners employ parking companies are to stop non-residents abusing the car park in question. Genuine residents should not be deterred from using the parking spaces.

3. Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.
After inspecting the signs after the driver received the charge, I noted

• The signs are not prominent and not placed copiously around the site.
• picture taken by me from the entrance, no obvious signs indicating a visitor/resident needs a permit.

b) Two signs have been placed together one which says “permit holder only” and the other “visitors parking only”, I believe these signs are ambiguous and the terms unclear to drivers before they park. It cannot be assumed that the driver has had any opportunity to read any other terms as they may not be the resident. Visitors can park according to the signs so there would be no prior knowledge of any parking charge risk, the signs must be very clear and show the charge itself in large lettering readable in the dark. The signs were also unlit which makes them very difficult to read in the hours of darkness especially during winter. These were easily missed as they are on one side of the car park only ( Right side where the car was parked,there are no lights, refer to picture above), with low height which could easily be concealed by cars.

• both pictures below have been provided by P4PARKING, they have not been cropped or edited by me at all. As you can see in the first picture how dark it is and no warning signs are visible around the car. The second picture shows both the signs which have been taken with a bright flash and is a close up yet the terms are not readable and parking charge not visible


The notices are away from any light source in the car park area and the parking charge of £100 is in small font which is not even readable from the evidence provided to me by P4PARKING. Inadequate notice of a 'parking charge' means there was no 'relevant obligation' and no relevant contract, contrary to 2(3) of schedule 4 of the POFA.

This view is supported in the Beavis decision by Lord Mance at 191:
''...The judge and Court of Appeal (para 28) also found some support in this Act for the view that charges of this kind are not to be regarded as unenforceable. In my view, that is a misreading of the Act. The Act merely “makes provision for the recovery of unpaid parking charges from the keeper or hirer of a vehicle” (section 56), in circumstances “where (a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and (b) those charges have not been paid in full” (Schedule 4, paragraph 1). The reference to a relevant “obligation” does not exclude the penalty doctrine. On the contrary, if a charge stipulated contractually is a penalty, there will be no obligation.’’

Any photos supplied by P4PARKING to POPLA will no doubt show the signage in daylight or with the misleading aid of a close up camera with an extremely bright flash.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.


4. No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. P4PARKING must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so P4PARKING have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

P4PARKING cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe P4PARKING are likely to be paid by their client - so any such payment income must be balanced within the breakdown P4PARKING supply and must be shown in the contract, which leads me to appeal point 5 below.

5. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, P4PARKING must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put P4PARKING to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between P4PARKING and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to P4PARKING.

6. No contract between driver and P4PARKING
As per the property lease signed and agreed to in 2015 there is no mention of P4PARKING, or any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park. As per appeal point 5 above, the vehicle was parked while observing the requirements of the property lease therefore there is no contract between the keeper and P4PARKING.



This concludes my POPLA appeal.

Yours faithfully,
"



POPLA DECISION



DecisionUnsuccessful
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 display a valid permit.

Assessor summary of your case
The appellant states that keeper liability has not been established, that the signage is insufficient to make the terms and conditions known to motorists, that there is a permit for the vehicle, that the operator does not have the authority of the landowner to issue parking charges, and that the charge is not a genuine pre-estimate of loss.

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. I note that the operator has issued a notice to driver, and as such is pursuing the driver for payment of the PCN. The PCN is payable by the driver. The appellant is appealing the PCN as keeper of the vehicle. The Protection of Freedoms Act (PoFA) 2012, paragraph 4 (1) states “the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”. The operator has the right to pursue the registered keeper of the vehicle if payment of the PCN remains unpaid after 28 days. The operator has not sought keeper liability. I would also note that as the appellant has indicated that they are aware of the drivers identity, they should have provided these details to the operator if they did not wish to assume liability for the charge. The operator has provided evidence of a contract between it and the landowner. I have reviewed this document and am satisfied that it allows the operator to issue Parking Charge Notices (PCN) and pursue the costs. The appellant has raised signage as an issue. They state that the signage is not readily visible at night and is ambiguous. I note that the appellant has made this statement despite not being the driver at the time. Further to this, the appellant states that the vehicle in question is in possession of a valid permit, and therefore has a right to park on site. I note that the appellants vehicle is parked directly in front of the signage that the operator has highlighted. This signage notes “your vehicle may also be issued with a Parking Charge Notice if found; parked without displaying a valid estate parking permit”. Given that the appellants vehicle is parked within clear site of a sign, and the appellant indicated the vehicle has a permit, I consider the appellant to be sufficiently aware of the parking restrictions, and that the signage on site is sufficient to note the contract being entered into. While disputing any contract was entered into, the appellant has failed to provide evidence of their lease that demonstrates a different parking contract is in force to the one demonstrated on the signage. I therefore can only consider the signage when it comes to a contract in this case. The appellant says the parking charge does not represent a genuine pre-estimate of loss of loss to the landowner, as the vehicle has a permit to park on site. 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. Having reviewed the grounds for appeal, I am satisfied that the operator has issued the PCN correctly.

Whilst i've seen a few decisions i consider bad, this one probably takes the biscuit.

manuraheel

Honestly I should have won on the bases of signage, I have personally seen the signage around the parking and sent them pictures thats I received from P4PARKING, signage doesn't even comply with PoFA! Pathetic decision, I feel they havent even read my appeal properly.

Umkomaas

Absolutely appalling decision.

PoFA can be complicated for the dim, but there's no excuse for those whose living is derived from the need to understand THE LAW!

Once again - we need to see the background, qualifications and experience of all POPLA Assessors, to have some confidence they are able to deal with this stuff competently.

@OP - time for (yet another) complaint to John Gallagher (recently allocated the role of) POPLA Lead Adjudicator.

Coupon-mad

manuraheel wrote: »

Honestly I should have won on the bases of signage, I have personally seen the signage around the parking and sent them pictures thats I received from P4PARKING, signage doesn't even comply with PoFA! Pathetic decision, I feel they havent even read my appeal properly.

NO. This is by far the VERY WORST new POPLA decision we've ever seen! :eek:



They have failed you, failed to understand keeper liability. Why do POPLA think the POFA Schedule 4 exists if there is a secret other way to pursue a keeper?

You should 100% have won on this point:

• No NTK was issued as required by schedule 4 of POFA - No Keeper Liability

There is no question about this. In law you CANNOT be held liable for this charge except under the POFA schedule 4 (it is the ONLY law allowing it, if they had got the paperwork right) and do not have to say or guess who was driving.

We can continue discussing this on your thread. First, you need to email:

complaints@popla.co.uk

...address it 'Dear Mr Gallagher,

IN THE SUBJECT LINE PUT YOUR POPLA CODE: FORMAL COMPLAINT - FAILURE OF ASSESSOR TO UNDERSTAND THE SECOND CONDITION OF SCHEDULE 4

and say you are appalled that POPLA Assessors have not been trained in the one law that relates to keeper liability (POFA Schedule 4). Tell him that you are specifically and formally complaining about this POPLA Assessor's lack of competent training and abject failure to understand the law and as a result, a complete and catastrophic failure of duty of care to the consumer public. A keeper CANNOT be told to pay the charge of an unindentified driver with no NTK ever served, in a case where the driver has not been identified by any party!

Ask POPLA if they stand by this horrendously wrong misunderstanding about keeper liability WITH NO NOTICE TO KEEPER EVER SERVED AT ALL (contrary to the VERY BASIC rules in Schedule 4). And if POPLA do not rehear this one and overturn this rubbish by a clearly POFA-untrained Assessor, they are going to have to explain it to ISPA because you will then be complaining to them too:

Assessor summary of your case
The appellant states that keeper liability has not been established, that the signage is insufficient to make the terms and conditions known to motorists, that there is a permit for the vehicle, that the operator does not have the authority of the landowner to issue parking charges, and that the charge is not a genuine pre-estimate of loss.

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. I note that the operator has issued a notice to driver, and as such is pursuing the driver for payment of the PCN.

The PCN is payable by the driver. The appellant is appealing the PCN as keeper of the vehicle. The Protection of Freedoms Act (PoFA) 2012, paragraph 4 (1) states “the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”.

The operator has the right to pursue the registered keeper of the vehicle if payment of the PCN remains unpaid after 28 days. The operator has not sought keeper liability. I would also note that as the appellant has indicated that they are aware of the drivers identity, they should have provided these details to the operator if they did not wish to assume liability for the charge.

Remind POPLA in the email of the LAW on keeper liability for charges on private land:

''Right to claim unpaid parking charges from keeper of vehicle

4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2)The right under this paragraph applies only if—

(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met;

Conditions that must be met for purposes of paragraph 4:

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8;

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given''.

nigelbb

The operator has not sought keeper liability. I would also note that as the appellant has indicated that they are aware of the drivers identity, they should have provided these details to the operator if they did not wish to assume liability for the charge.

This part of the assessors conclusion is quite disgraceful. If it were indeed the law there would be no need for POFA 2012 with all its checks & balances.

POPLA needs to review all decisions by Robert Harrison & send him for a period of re-education. There may be other similar cases where the victim has paid up on receiving such a fatally flawed ruling. There are hundreds of POPLA decisions every week whereas we only ever see a handful reported on this forum.

BiscuitMuncher

Of 5 PCNs issued, one was cancelled by Secure-a-Space, two were found in favour of Secure-a-Space at POPLA and two were found in favour of the appellant.

PCN 4:

DecisionSuccessful

Assessor Name Sharon Kerr

Assessor summary of operator case
The operator states that a parking charge notice was issued to **** *** on the ** December 2015. The operator states that the there was no valid permit displayed in the vehicle at the time of the contravention.

Assessor summary of your case
The appellant states that the signage within the parking area is misleading and ambiguous
The appellant states that the operator has no standing or authority to pursue charges or form contracts with motorists.
The appellant states that the notice to keeper is non-compliant, therefore no keeper liability The appellant states that there is no contract between Secure-A-Space Ltd. and the keeper.
The appellant states that the vehicle belongs to a genuine resident with full rights to park in allocated parking space.
The appellant states that there is no genuine pre-estimate of loss.

Assessor supporting rational for decision
The appellant, as the keeper of the vehicle, has stated that they do not believe the notice to keeper was issued in accordance with the provisions set out in PoFA 2012. Schedule 8 paragraph 2 (g) of PoFA 2012 states that: “The notice to hirer (sic) must – (g) inform the keeper of any discount offered for prompt payment and the arrangement for the resolution of disputes or complaints that are available. Reviewing the evidence provided to me by the operator the notice to keeper does not offer any discount for prompt payment.

As the operator is issuing a parking charge to the keeper by virtue of PoFA 2012, the burden of proof rests with the operator in showing that the provisions of the act have been followed.

Upon reviewing the evidence available to me, and in the absence of any evidence suggesting otherwise, I am not satisfied that the operator provided this required information to the appellant.

I note that the appellant has raised further grounds for appeal, however as I have allowed the appeal on this basis, I have not considered them.

Coupon-mad

Reviewing the evidence provided to me by the operator the notice to keeper does not offer any discount for prompt payment.

Hilarious! :rotfl:

So new POPLA expects a NTK to have a discount (even though it doesn't have to, at that stage after the windscreen PCN discount expired ages ago) and yet other clueless Assessors are telling keepers to pay a charge where no NTK was issued at all.

This is a farce but well done on another win.

BiscuitMuncher

PCN 3 - Successful

DecisionSuccessful
Assessor Name Kayleigh Craven
Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the driver failed to display a valid permit.

Assessor summary of your case
The appellant has raised numerous grounds for appeal: •
non-compliant notice to keeper, therefore no keeper liability; •
no genuine pre-estimate of loss; •
no standing or authority to pursue charges nor form contracts with motorists and no contract between Secure-A-Space Ltd. and the keeper; •
the Vehicle belongs to a genuine resident with full rights to park in allocated parking space; and
•signage within the parking area is misleading and ambiguous.

Assessor supporting rational for decision
The operator states that it issued the PCN on the basis that the driver failed to display a valid permit. The operator has provided photographic evidence of the vehicle parked in a permit holders only area without displaying a valid parking permit.

The appellant has raised a number of grounds for appeal; however, the report will focus solely on the application of Protection of Freedoms Act (PoFA) 2012, as this supersedes the other aspects of the appeal.

The appellant is appealing the PCN as registered keeper of the vehicle. The appellant states the notice to keeper is non-compliant, therefore the operator has not sought keeper liability.

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 2012 (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 vehicles has not been identified, the notice to keeper will need to comply with section 8 of PoFA 2012.

In paragraph 2 it states: (2)The notice must— (f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given— (i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;

The notice to keeper states “If this parking charge remains unpaid after a period of 28 days of this notice”, where the above confirms that payment is due within 28 days beginning with the day after that on which the notice is given. As a result, the Notice to Keeper does not comply with the regulations set out in PoFA 2012.

Furthermore, in paragraph it states: (8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes— (a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and (b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.

The operator has only provided the front page of the notice to keeper, therefore I am unable to confirm that it has advised the keeper of the above.

While the operator’s photographic evidence shows that the driver did not comply with the terms and conditions, as the driver has not been identified and the notice to keeper does not comply with numerous sections of PoFA 2012, I can only conclude that the operator has failed to demonstrate that it issued the PCN correctly.

BiscuitMuncher

PCN 2 - unsuccessful

This one mentions landowner authority. It took two months of email tennis to finally get the landowner details from the Land Registry and arrived after my rebuttal of the evidence. The landowner of the parking space is a development company who was not mentioned in the operators evidence.

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 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.