POPLA Decisions

Edna_Basher

POPLA assessment and decision

Date
20/05/2016

Verification Code
6060986078

Decision
Successful

Assessor Name
Lauren Bailey

Assessor summary of operator case
The operator’s case is that the appellant remained in a restricted area for 13 minutes.

Assessor summary of your case

The appellant’s case is that the operator failed to deliver a Notice Hirer that is compliant with the Protection of Freedoms Act (2012). The appellant has raised that the operator does not have the authority to pursue charges on the land and that it has failed to allow a reasonable grace period. The appellant states the charge does not represent a genuine pre estimate of loss and that the signage at the location is inadequate.

Assessor supporting rational [sic] for decision

As the driver has not been identified in this instance I must ensure that, the operator has complied with the requirements of PoFA (2012). The operator has provided evidence of sending a Notice to Keeper and subsequently sending a Notice to Hirer as the keeper has informed them that the vehicle had been hired and as such, they should not be held liable.

Schedule 4 paragraph 14 (1) of PoFA 2012 states that: “If – (a) The creditor is by virtue of paragraph 13(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and (b) The conditions mentioned in sub-paragraph (2) below are met, The creditor may recover those charges (so far as they remain unpaid) from the hirer.” It then goes on to state under paragraph 14 (2) that: “The conditions are that – (a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper” The documents mentioned in paragraph 13(2), referred to in the above excerpt, are: “(2) … (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement”.

Reviewing the evidence provided to me by the operator, I can confirm that I have not been provided the above documentation. In its response to POPLA, the operator has not asserted that the required documents were sent to the hirer alongside the notice to hirer. As the operator is issuing a parking charge to the hirer by virtue of PoFA (2012), the burden of proof lies with the operator to show that the provisions of the PoFA (2012) have been followed when transferring liability from the keeper of the vehicle to the hirer of the vehicle.

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 alongside the notice to hirer. 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.

Checkcheck2016

I can't fine where else to post this so here goes my parking charge that I've been challenging under the tips on this site has now gone to a solicitor and is more than doubled what can I do

Coupon-mad

Checkcheck2016 wrote: »

I can't fine where else to post this so here goes my parking charge that I've been challenging under the tips on this site has now gone to a solicitor and is more than doubled what can I do

Post a new thread on the forum back on page one of the thread list. Check your email from MSE when you registered, it tells you how to use the forum.

Willharrison71

Hi guys!
I have been slapped with a £100 parking fine yesterday for been 58 mins late and leaving the car park at 23:56:08... However this was after the shops were closed meaning that the landowners or retail owners have not lost any money meaning that i will not have damaged their revenues in any fashion.
From what i have gathered from forums and websites.. Parking eye are in place to ensure that the businesses do not loose money and that the £100 charge is to make up for the losses the companies made in the extra 58 minutes that my car was parked in the empty car park..
Are parking eye legit? and do i have to pay for this ridiculous parking charge or more so dumb invoice.
Thanks

Coupon-mad

Are parking eye legit?

Debatable in terms of how we would answer that! But they sue tens of thousands of people and are an absolute scourge and plague in retail car parks, best complained about (to the Store Managers) as well as appealing to PE online.

Coupon-mad wrote: »

Post a new thread on the forum back on page one of the thread list. Check your email from MSE when you registered, it tells you how to use the forum.

As above, this is for POPLA Decisions ONLY...you have missed the forum sticky thread for NEWBIES (FAQs thread) telling you exactly how to appeal this.


NO REPLY HERE PLEASE.

ItsJustCurtis

Wright Hassall Reference POPLA

Appeal Outcome Rejected

We have been appointed by the British Parking Association (“BPA”) to act as an independent appeals body, under the brand of Parking on Private Land Appeals (“POPLA”), in respect of the Appeal and to consider both the Appellants and the Car Park Operator’s positions before providing a decision to the parties. We are not instructed to act on behalf of either party.

We confirm that we have considered the appeal, taking into account all of the evidence at hand and applying the prevailing legislation and with reference to the BPA Code of Practice, and have decided to reject the Appeal on this occasion. To avoid further action, including Court action, the Appellant can make payment to Car Park Operator in the next 28 days. The Parking Charge Notice (“PCN”) will not be cancelled.

Reasons for dismissing the Appeal

• The Appellant stated in the Appeal that the amount of the parking charge is unreasonable. Pursuant the guidance set out in the Supreme Court’s decision in ParkingEye v Beavis and in accordance the BPA Code of Practice, a reasonable charge would be £100.00. As the charge the Car Park has imposed is equal to or less than £100.00, we have no option but to reject the Appeal.

• The Appellant has stated in the Appeal that the signage at the car park is not adequate and that they unaware that they had entered into a contract by remaining at the location. Upon reviewing the provided by both parties we contend that the signage is adequate and does comply with BPA Code of Practice. Accordingly, the Appeal is rejected.

• The Appellant has requested evidence that the Car Park Operator has a legal right to manage the. We are in receipt of sufficient evidence from the Car Park Operator to satisfy us that the Car Park does have a legal right to manage parking at this location and to issue Parking Charge

Notices. Accordingly, the Appeal is rejected.


They appear to have ignored the evidence I've already provided to refute these points. Not sure how to proceed.

Rocky27

https://forums.moneysavingexpert.com/discussion/comment/70865692#Comment_70865692

Verification Code

3311546557

Decision: Successful :beer:

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant’s vehicle waited in an area where waiting is not permitted.

Assessor summary of your case
The appellant has raised numerous grounds for appeal which are detailed below: • The timings provided are not clear, the two letters and CCTV camera shots are different. • Notice to Keeper failed to meet the strict requirements of POFA • Landowner authority and no contract to can be formed with drivers • Inadequate signage • The driver did not park or leave the vehicle and was waiting for someone • Yellow road writing inadequate warning for potential PCN issue

Assessor supporting rational for decision
After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle in question at the time of the relevant parking event. The operator is therefore pursuing the appellant as the registered keeper of the vehicle in this instance. Whether the operator is able to pursue the keeper will be the focus of this report. 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 the strict requirements of section 9 of the Protection of Freedoms Act (PoFA) 2012. I have reviewed the Notice to Keeper against the relevant sections of the PoFA 2012 and I am not satisfied that it is compliant. Section 9 (2) states “The notice must – (f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and 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”. In reference to this, the Notice to Keeper does not state this and as a result it does not comply with the strict requirements set out in the PoFA 2012. Accordingly, I must allow the appeal. I note the appellant has raised further grounds for appeal, however as the appeal has been allowed on this basis I have not considered them.

Coupon-mad

Hah!

Both ParkWatch (as above) and Premier Park fall foul of using the words 'within 28 days'! Heehee!

clint_S

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 is raising the following grounds for appeal; • No Breach of Byelaw • No Authority • The appellant states that the operator has failed to establish keeper liability. • The appellant states that the signage was not readable, so there was no valid contract formed between the operator and the driver of the vehicle • The appellant states that the charge is an unenforceable penalty and that binding case law, including the ParkingEye v Beavis case, supports this position.


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.

Umkomaas

Well done OP, but what a rambling mish-mash of reasoning!

I consider that the land upon which the appellant parked on this occasion

Really? Did the appellant reveal the driver's identity? Was there an 'admission'?

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.

I don't understand what is being said here.

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.

Even if the PPC could identify the owner, POPLA has no locus to adjudicate on byelaws - the domain of the Mags Court.

Whilst I am willing to consider that a keeper may be held as the owner in the absence of any evidence disproving this fact

POPLA is not in a position to consider 'ownership'. Either the appellant is the keeper and/or driver - but nothing else!

This should have been kicked out as soon as it was evident that it was being pursued under 'Byelaws'.

Whilst cases that have been lost at POPLA have been raised with the ISPA where 'procedure' is in doubt, it would be interesting to see how ISPA would deal with this 'won' case! Procedure-wise, there's clearly a serious confusion at POPLA as to just what their role is here.

EDIT TO ADD:

And just for the record, apparently here's the Adjudicator's background and experience to provide expert adjudication in complex parking cases.

https://uk.linkedin.com/in/amy-smith-925666b5