POPLA Decisions

luke123456

PCN

DecisionSuccessful
Assessor NameAdele Brophy
Assessor summary of operator case
The operator advises that the Parking Charge Notice (PCN) was issued due to failure to pay for the duration of stay.

Assessor summary of your case
The appellant’s case is that the operator has not complied with the equality act 2010 and has issued a non-compliant Notice to Keeper. The appellant states that the terms and conditions are unfair and the operator has no standing authority to pursue charges or form contracts with drivers. The appellant further advised that the Parking Charge Notice (PCN) is not a genuine pre – estimate of loss, and the signage at the site was not clear.

Assessor supporting rational for decision
Whilst the appellant has raised a number of grounds for appeal, my report will focus on genuine pre-estimate of loss as this supersedes all other grounds for appeal. 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.” As such, it is evident that I must consider whether the signage at the location was sufficient to bring the parking charge to the attention of the appellant and other motorists who may wish to park. 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”. Within its response, the operator has provided a number of photographs documenting the signage at the location.. Upon close inspection of these photographs, I note that the parking charge is noted on several of these. However, the Supreme Court stated that the parking charge must be “clear”. Based on the evidence provided, I can only conclude that the signage in place does not meet the standards outlined by the Supreme Court in that the “wording of the notices” are not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park. In light of this, I can only conclude that the operator has failed to demonstrate it issued the Parking Charge Notice (PCN) correctly and so while I note the other grounds of appeal raised by the appellant, these do not require any further consideration.

Ralph-y

Well done on the 3 ....

I do hope that you will be complaining to POLA lead assessor and to the ISPA

good luck

Ralph:cool:

Coupon-mad

So, luke123456's appeal decision 'rational' (ahem...POPLA, please learn to spell 'rationale'...) starts:

Whilst the appellant has raised a number of grounds for appeal, my report will focus on genuine pre-estimate of loss as this supersedes all other grounds for appeal.

OK I thought, get the popcorn out, this should be good, seeing as the appeal was 'successful'. So Adele Brophy then decides:

Based on the evidence provided, I can only conclude that the signage in place does not meet the standards

So 'signage' is 'GPEOL' which 'supersedes all other grounds for appeal' is it, just because 'the Supreme Court stated that the parking charge must be “clear”! Never mind that that fact is VERY basic contract law and already in the POFA Schedule 4 and is hardly anything new!

:rotfl:



On a serious note, it is evident that someone has told these Assessors that GPEOL supersedes all other grounds for appeal. !!!!!!? I'm sorry, say that again? It supersedes the POFA then, and appeals based on the car being stolen...

'never mind that, what about the GPEOL?' says POPLA. :mad:

The_Deep

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. .

Absolutely, especially as the PPC will have no commercial interest

... I am satisfied that the operator has a genuine interest in issuing charges for contraventions of the terms and conditions

Not if the resident has not accepted them

and as agreed with the landowner there is still a legitimate requirement to ensure spaces are free for residents of the property.

There are better ways of doing this than harassing residents, e,g. raising arms, bollards, etc.

Myriddin

Yet another [FONT=&quot]inconsistent[/FONT] travesty from POPLA. It would appear that PE don't need to follow rules but everyone else does:


Decision
Unsuccessful

Assessor Name
Rebecca Grimes

Assessor summary of operator case
the operator states that by either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, the Parking Charge is now payable.


Assessor summary of your case
The appellant’s case is that the operator has a lack of landowner authority, the signage is not compliant with the BPA Code of Practice as it fails to provide information on what the ANPR captured data will be used for and the notice to keeper is not complaint with PoFA 2012. The appellant states that the ANPR cameras record the time a vehicle enters and leaves the site and parking time is then purchased once the driver has parked the car and walked to the machine but there is an inconsistent in these timings as they are not synchronised, the operator relies on the time between entry and exit an not on the time from the pay and display machine. The appellant states that the operator fails to inform the user of this. The appellant states that the signage is unclear as to the full extent of the terms and conditions and no indication that an unpaid overstay or that a failure to pay the tariff is in breach of the terms and conditions. The appellant states that as the operator is pursuing a charge for an alleged unpaid overstay, this can only be limited to the amount of tariff not paid and/or damages for trespass which is not specified. The appellant states that the signage is a mass of small print placed at a height that is difficult, if not impossible to read. The appellant states that the charge of £100 can only be seen as a penalty and it is not a genuine pre-estimate of loss. The appellant states that the charge is extravagant and unconscionable.


Assessor supporting rational for decision
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 the Protection of Freedoms Act 2012 (PoFA). I have reviewed the Notice to Keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. When it comes to parking on private land, a motorist accepts the terms and conditions in force at the site, by parking their vehicle. The operator monitors the site using Automatic Number Plate Recognition (ANPR). The operator has provided photographs of the appellant’s vehicle entering the site at 17:25 and exiting five hours and 26 minutes later at 22:21. The operator has provided photographs of the signs at the site. The signs state; “Parking tariffs apply 24 hours a day, 7 days a week” and “Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. Furthermore, I consider that there is adequate notification of the use of ANPR cameras in this car park. The operator has provided a site map that confirms the location of the signs at the site. 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. The operator has provided a system printout, confirming that a vehicle registration matching that of the appellant’s purchased four hours parking time on the day in question, despite remaining at the site for five hours and 26 minutes. The appellant’s case is that the operator has a lack of landowner authority. Within Section 7 of the British Parking Association (BPA) Code of Practice, it requires parking operators to have the written authority from the landowner to operate on the land. 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 contract in force, confirming that it has the required authority to operate on the land in question and as such, it has met the requirements set out in Section 7 of the BPA Code of Practice. The appellant states that the ANPR cameras record the time a vehicle enters and leaves the site and parking time is then purchased once the driver has parked the car and walked to the machine but there is an inconsistent in these timings as they are not synchronised. However, in this instance, the driver overstayed the purchased time in the car park by one hour and 26 minutes. The appellant states that the charge of £100 can only be seen as a penalty and it is not a genuine pre-estimate of loss. The appellant states that the charge is extravagant and unconscionable. 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. It is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. If the appellant was in disagreement with the terms and conditions of the site, there would have been sufficient time to leave the site without entering into a contract with the operator. By remaining parked on site, the appellant accepted the terms and conditions. On this occasion, the appellant has failed to follow the terms and conditions of the signage at the site and I conclude that the Parking Charge Notice was issued correctly. Accordingly, I must refuse this appeal.

Coupon-mad

Rebecca Grimes - has anyone seen her actually grant an appeal?!

Which car park was this and was the landowner contract blacked out and heavily redacted so as to be unreadable and not evidential?

Myriddin

Coupon-mad wrote: »

Which car park was this and was the landowner contract blacked out and heavily redacted so as to be unreadable and not evidential?

This was PE at Manchester Britannia Bloom St.

The landowner agreement was heavily redacted. It was signed but the names had been redacted. I challenged this in my operator evidence rebuttal but from the assessor remarks I doubt any of my rebuttal was considered.

Coupon-mad

I would email:

complaints@popla.co.uk

And say for an Assessor to accept a very heavily redacted contract where the requirements of 7.3 of the BPA CoP are covered/not evidenced at all AND the name of the signatory is redacted too is inconsistent with POPLA decisions for many years including those made by the new POPLA.

Here's an example of an 'old' POPLA decision which says a heavily redacted contract is a no-no (we've also had new POPLA decisions saying the contract was not legible so not sufficient evidence but I couldn't find one):

https://forums.moneysavingexpert.com/discussion/comment/67442836#Comment_67442836

2015:

''They have enclosed a copy of the contract to support their case.
The onus is on the Operator to prove its case on balance of probabilities. The Appellant has questioned the Operator’s authority to pursue parking charge notices and the Operator has provided a redacted contract to show that they authority to issue parking charge notices, however, this contract appears to be invalid as it is redacted. A valid contract shall contain valid names and addresses for both parties of the agreement among other relevant information and this contract does not seem to comply with this requirement. The Operator has not discharged the burden of proof.
Accordingly, I allow this appeal.''
Aurela Qerimi
Assessor

Myriddin

This is going today unless anyone can add:

I wish to invoke your complaints procedure concerning the outcome of a submitted appeal which has been returned as unsuccessful.

The assessor,Rebecca Grimes, has accepted a heavily redacted contract from the operator ParkingEye Ltd as evidence of Landowner authority when previous decisions by POPLA have found otherwise. For example from 2015:

''They have enclosed a copy of the contract to support their case.
The onus is on the Operator to prove its case on balance of probabilities. The Appellant has questioned the Operator’s authority to pursue parking charge notices and the Operator has provided a redacted contract to show that they authority to issue parking charge notices, however, this contract appears to be invalid as it is redacted. A valid contract shall contain valid names and addresses for both parties of the agreement among other relevant information and this contract does not seem to comply with this requirement. The Operator has not discharged the burden of proof.
Accordingly, I allow this appeal.''
Aurela Qerimi
Assessor

For an Assessor to accept a very heavily redacted contract where the requirements of 7.3 of the BPA CoP are not evidenced at all AND the name of the signatory is redacted too is inconsistent with POPLA decisions for many years including those made by the new POPLA.

Further, the assessor accepts that Sec 21.1 of the BPA COP is satisfied when the operator's photographs clearly show that it is not. This again shows an inconsistency with recent successful POPLA decisions where a failure to abide by the BPA COP has led to a successful appeal.

I would also question whether the rebuttal to the operator's evidence has been considered as there is no mention in the assessor's summary of the arguments presented there.

In the interests of consistency and fairness I ask that the appeal is revisited.

Edna_Basher

Coupon-mad wrote: »

We've also had new POPLA decisions saying the contract was not legible so not sufficient evidence but I couldn't find one.

Details of the "new POPLA" decision on illegible contracts are tucked away in tlw_18's recent thread regarding Portishead Quays Marina:

http://forums.moneysavingexpert.com/showpost.php?p=70243817&postcount=47

Perhaps I should have posted the details of that decision onto the main POPLA decisions thread too (Unfortunately, MSE don't have a slap-wrist icon for me to use).

Myriddin - if the contract was largely unreadable, then you can quote assessor Nial Vivian's determination.