POPLA Decisions

Feral_Moon

POPLA appeal against UKPC won! :j

Just received email from Wright Hassall solicitors:

Appeal outcome - Allowed

Reasons for allowing the Appeal:

Evidence regarding this POPLA Appeal has been requested from the Car Park Operator and no response has been received. As such, this decision is based on the evidence currently available. The Appellant has requested evidence that the Car Park Operator has a legal right to manage the site. We are not in receipt of any evidence to suggest that the Car Park Operator does have a legal right to manage the car park. Accordingly the Appeal is allowed.

Yours faithfully,

WRIGHT HASSALL LLP


Original thread here.

Kc88

Appeal success against ECP, thank you all so very much for your help
My thread (sorry can't post links):
forums.moneysavingexpert.com/showthread.php?p=70921374#post70921374



See POPLA's decision (boils down to landowner authority):

The appellant has raised several grounds for appeal. However, my findings will focus on landowner authority as this ground has persuaded me to allow the appeal. The burden of proof lies with the operator to demonstrate how the appellant has not met the terms and conditions of the car park. The British Parking Association BPA Code of Practice states, under section 7.2; “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.” It also states in section 7.3; “The written authorisation must also set out: a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement d) who has the responsibility for putting up and maintaining signs e) the definition of the services provided by each party to the agreement” The burden of proof lies with the operator to demonstrate that it has issued the Parking Charge Notice Correctly. The operator has provided a copy of a landowner agreement to prove that they have the relevant authority of the land owner to enforce parking at this area at site. Having viewed the agreement provided I am not satisfied that the operator have the relevant authority to enforce parking on this land. I am not satisfied that the operator has complied with section 7 of the BPA Code of Practice as the definition of the services provided has not been stated on this document. The document is also not signed and dated in proof it has been agreed with. I am unable to conclude that the operator has correctly issued the parking charge.

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/70921374#Comment_70921374

Well done - an amusing one because ECP protested that they actually have a leasehold title in this site! Makes them landholders.

The operator has provided a copy of a landowner agreement to prove that they have the relevant authority of the land owner to enforce parking at this area at site.

Having viewed the agreement provided I am not satisfied that the operator have the relevant authority to enforce parking on this land. I am not satisfied that the operator has complied with section 7 of the BPA Code of Practice as the definition of the services provided has not been stated on this document. The document is also not signed and dated in proof it has been agreed with.

Riiiight...

''I am not satisfied that the operator has complied with section 7 of the BPA Code of Practice as the definition of the services provided has not been stated on this document''

So, that begs the question, WHY do POPLA accept witness statements from PPCs that do not define anything much at all, to comply with para 7?

mrsunnybunny

I just lost what should have been a clear case.

https://forums.moneysavingexpert.com/discussion/comment/70962163#Comment_70962163


This makes no sense at all. I have not received the NTK and while I appealed as the driver I still lost. PTL did not even provide proof that they could operate on the premises which I explained in detail and I lost! Further yet, POPLA explains that they did provide proof???!

!!!!!! is going on??????

DecisionUnsuccessful
Assessor Name: Lauren Bailey
Assessor summary of operator case: The operator’s case is that the appellant failed to display a valid permit.

Assessor summary of your case
The appellant’s case is that the Notice to Keeper does not meet the requirements of the Protection of Freedoms Act 2012. The appellant states that vehicle belongs to a resident and a permit was displayed. The appellant says that the signage is inadequate and poorly lit. The appellant has questioned if the operator has the authority of the landowner to operate.

Assessor supporting rational for decision
The operator has issued the parking charge as the appellant parked without displaying a permit. The operator has provided photographs of the appellant’s vehicle parked at the site. The photographs show that the appellant parked without a permit displayed in the windscreen. The appellant has provided photographs to show that the permit was displayed, however it fallen from the dashboard and was partially hidden. The appellant’s photographs show that the bay number could be seen on the permit. However, the images provided by the operator confirm that the permit was not clearly displayed in the windscreen of the vehicle. The operator has provided photographs of the signs at the site. The signs state, “Vehicles parked in this area must park in the correct marked bay and clearly display a valid P.T.L permit in the windscreen”.

The appellant has stated that the signs are not well lit. However, from the photographs supplied by the operator it is clear the car park is lit and I am satisfied that the signs are clear. Within Section 18.1 of the British Parking Association (BPA) Code of Practice it states, “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.” I consider the photographic evidence to show that the operator met the minimum standards set by the BPA. I also consider that it is clear a permit must be clearly displayed at all times.

The appellant has stated that the Notice to Keeper does not meet the requirements of PoFA 2012. However, the operator has not sent a Notice to Keeper to the appellant. From the evidence, I am satisfied that the operator has not attempted to transfer liability from the driver to the keeper. The operator is only pursuing the driver for the payment of the parking charge. [THIS IS NOT TRUE - I appealed as the keeper and clearly pointed out and explained the requirements of POFA

The appellant has questioned the operator’s authority to operate on the land. 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. In this instance, the operator has provided a contract that confirms it has the authority of the landowner to issue parking charges on the land in question. [THIS IS NOT TRUE - PTL only provided generic T&Cs which made no references to the landowner. No proof was submitted as part of the evidence]

The appellant has raised a complaint regarding the operator passing the charge to a debt recovery agent. However, POPLA is an independent appeals service that assesses appeals based on the evidence supplied by both parties. POPLA considers if a motorist has complied with the terms and conditions of parking set out in the signage at the site. POPLA can only consider if a parking charge was issued correctly. Ultimately, 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. I accept that the appellant is a permit holder, however this permit was not displayed at the time the parking charge was issued. Therefore, I conclude that the parking charge was issued correctly.

Coupon-mad

Replied on your thread - complain to POPLA and then ISPA about procedural errors. Keep it concise, not a repeat of the appeal.

Mike172

Out of interest how long is it taking people to get a response back from Wright Hassall, and does this come through the post or through email?

Feral_Moon

Mike172 wrote: »

Out of interest how long is it taking people to get a response back from Wright Hassall, and does this come through the post or through email?

It took a year for them to do my appeal and I received an email with the results.

Coupon-mad

Here's an Indigo set of 3 PCNs I appealed for a friend where the driver DID have a permit issued by the train station, Govia issued a letter wanting the 3 charges cancelled - but Indigo reckoned the permit wasn't 'valid' and pressed ahead regardless - and never sent my friend her copy of the evidence either.

Nice bunch of flowers on its way to me, thanks Indigo!

Decision: Successful

Assessor Name: Amy Smith

Assessor summary of operator case
The operator’s case is that the appellant has failed to display a valid ticket or voucher.

Assessor summary of your case
The appellant’s case is that the penalty is not authorised to be pursued under the bye-laws leaving the operator no options to enforce it not any rationale for the charge which is unrecoverable.

• The appellant states that there was no breach of contract as it was a valid permit.

• The appellant states that no person or body other than the courts can impose a penalty for breach of Bye-laws.

• The appellant states that she has not breached the Bye-laws.

• The appellant states that there is no authority from the landlord/ principal.

• The appellant states that the signage was not readable so no valid contract was formed.

• The appellant states that the charge is an unenforceable penalty.

Assessor supporting rational for decision
Reviewing the photographic evidence of the signage erected at the site provided to me by the operator, stating that “This car park is subject to railway byelaws”, I consider that the land upon which the appellant parked on this occasion is subject to railway Byelaws, which can be found at https://www.gov.uk/government/publications/railway-byelaws.

In this case, I have not been provided with a copy of the Parking Charge Notice (PCN) that would have informed the appellant of what law or regulation they were being pursued under, and also define the standards that I would need to assess the appeal against. Given that the signage in the car park indicates that motorists will be pursued for a Penalty Notice under Byelaws for parking contraventions, and given that the response made by the operator to the initial appeal also identifies the charge as a “Penalty Charge Notice”, I am only able to assume that the charge was issued under Byelaws. This is on the basis that the British Parking Association (BPA) Code of Practice indicates, under section 14.2 “Misrepresentation of Authority”, that you must not use terms that imply parking is managed, controlled or enforced under statutory authority, such as ‘fine’ or ‘penalty’.

Whilst this is not condoned for parking charges issued for non-compliance with the contract, as set out on the signage in the car park, under the BPA Code of Practice, charges issued for contravention of Byelaws are technically penalties and so this restriction does not apply.

From the photographic evidence of the appellant’s vehicle parked in the car park, showing that a yellow wallet had been affixed to the driver side window of the car, and on the basis that the operator has not provided me with any information relating to who the registered keeper of the vehicle is, I must assume that the appellant had been issued with a notice to driver, and that no notice to owner had been produced at any stage of this alleged parking event. Due to the lack of information about who the owner of the vehicle is, or a copy of any notice sent to the owner of the vehicle, I must assume that the operator is pursuing the appellant as the driver of the vehicle.

The railway byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws. From the evidence provided to me by the operator, I am unable to determine that it has identified the appellant in this case as the owner of the vehicle.

Whilst I am willing to consider that a keeper may be held as the owner in the absence of any evidence disproving this fact, I am not satisfied that the operator has sufficiently shown that the individual who it is pursuing for the penalty is in fact liable for the penalty.

As the burden of proof rests with the operator in both showing that the appellant has not complied with the relevant Byelaws in place on the land, and showing that the appellant is liable for the penalty issued, I must allow this appeal. Accordingly, this appeal is allowed.

So POPLA think Indigo pursued her 'as the driver' (even though she wasn't, and told POPLA she wasn't). As only owners can be held liable by byelaws, the Assessor concludes:

''I am not satisfied that the operator has sufficiently shown that the individual who it is pursuing for the penalty is in fact liable for the penalty.''

Soooooo...in all those cases where POPLA has mucked up liability where there has been no NTK served (in non-byelaws cases) WHY are they not also saying ''I am not satisfied that the operator has sufficiently shown that the individual who it is pursuing for the penalty is in fact liable for the penalty.''

We need to start using that as an appeal heading, as well as 'no keeper liability' we could also tell people to then have a second point, in POPLA's own words which hopefully, they will finally understand:

The operator has not shown that the individual (registered keeper) who it is pursuing for the parking charge is in fact liable for the parking charge.

bod1467

Is your friend willing for you to share (one of) the POPLA references so others use (it) them accordingly?

Coupon-mad

Yes I will add it once I'm sure they are not throwing their toys out the pram and appealing it because they don't want to lose 3 in one go against me (and it was very obvious the appeals were written by someone on here!).

My friend works for my admin team; I supervise her at work/school so I will double check with her.