POPLA Decisions

razil

Euro Carparks

Decision Successful

Assessor Name Amy Butler


Assessor summary of operator case
The operator’s case is that the appellant’s pay and display/permit did not cover the full duration of the appellant’s stay.

Assessor summary of your case
The appellant is appealing as the registered keeper of the vehicle, and has raised several grounds of appeal. These are as follows: • No Landowner Authority • Non-compliant with the British Parking Association (BPA) Code of Practice (CoP) section 20.5a. • The minimum grace period was not allowed by the operator • Neither comparable legitimate interest nor clear prominent signage terms. • The charge is excessive, which can be differentiated from the ParkingEye-v-Beavis case. • The ANPR system is neither reliable nor accurate.

Assessor supporting rational for decision

The operator has provided photographic evidence of the terms and conditions, as displayed at the site, which states “24 hour car park; Up to 1 hour £2.50; Up to 2 hours £3.00; Failure to comply with the following will result in the issue of a £100 Parking Charge Notice (£60 if paid within 14 days of issue)”. The operator has provided images from the Automatic Number Plate Recognition (ANPR) system, which shows the appellant’s vehicle FN64 FZM entered the site on 9 October 2016, at 11:02 and exited the site at 12:20. The appellant remained at the site for a period of one hour and 18 minutes. The operator has provided a copy of the system print out, this is an online transaction record showing a search for the appellant’s vehicle. From this, I can see that the appellant’s vehicle was registered against a payment for a one hour stay. The operator has issued the Parking Charge Notice (PCN) as the appellant’s pay and display/permit did not cover the full duration of the appellant’s stay. The appellant is appealing as the registered keeper of the vehicle, and has raised several grounds of appeal. These are as follows: • No Landowner Authority • Non-compliant with the BPA CoP section 20.5a. • The minimum grace period was not allowed by the operator • Neither comparable legitimate interest nor clear prominent signage terms. • The charge is excessive, which can be differentiated from the ParkingEye-v-Beavis case. • The ANPR system is neither reliable nor accurate. As the appellant has questioned the operator’s authority to issue the PCN, I would expect the operator to provide a copy of the landowner agreement in response to this ground of appeal. Section 7 of the British Parking Association (BPA) Code of Practice (CoP) requires operators to own the land or to have written authority from the landowner to operate on the land. The operator has provided what appears to be a landowner contract; however there is not a date to determine when the landowner agreement began. As such I am unable to determine if the operator has the authority to issue PCN’s on the land and date in question. Accordingly I must allow the appeal. I note that the appellant has raised several grounds of appeal; however I do not need to look at these as I have allowed the appeal.


Thank you so much for all your help with this.


:beer::beer::T:T:T

Umkomaas

If there is no landowner authority they had no reasonable cause to access your details from the DVLA. If you want to levy a bit of payback you could send in a strong complaint to the DVLA that the PPC has accessed your details without reasonable cause (and here's the POPLA decision to confirm it - attach a copy) - and what are they going to do about it.

However, if you really want to go for the jugular, you could sue the PPC for breaching Data Protection Act principles by accessing your data without reasonable cause. It's not for the faint hearted, will involve you in a bit of work (but not as much work as you'll be dishing out for the PPC to have to deal with) and you could win costs starting at a minimum of £250 with a ceiling of £750.

the_wheels_have_fallen_of

plynch66 wrote: »

POPLA assessment and decision
20/01/2017
Verification Code
2413376910
Decision
Successful

Assessor Name
Steve Macallan

Assessor summary of operator case

The operator states that it issued the Parking Charge Notice (PCN), because the vehicle with registration XXXX XXX, “parked longer than the maximum period allowed” at Church Farm on 28 October 2016.

Assessor summary of your case

The appellant is questioning the operator’s authority to issue and pursue PCNs for this site. He is also questioning the accuracy of the operator’s Automatic Number Plate Recognition (ANPR) system. He states the operator is in breach of the Unfair Terms in Consumer Contracts Regulations Act (UTCCA) 1999 and that the amount of the PCN is “disproportionate” and also “punitive and unreasonable”.
Assessor supporting rational for decision

The operator states that it issued the Parking Charge Notice (PCN), because the vehicle with registration XXXX XXX, “parked longer than the maximum period allowed” at Church Farm on 28 October 2016. The appellant is questioning the operator’s authority to issue and pursue PCNs for this site. He is also questioning the accuracy of the operator’s Automatic Number Plate Recognition (ANPR) system. He states the operator is in breach of the Unfair Terms in Consumer Contracts Regulations Act (UTCCA) 1999 and that the amount of the PCN is “disproportionate” and also “punitive and unreasonable”. The terms and conditions state: “Failure to comply with the following will result in the issue of a £90 parking charge notice”, which includes “Parking limited to 1½ hours”. The operator has also provided photographic evidence of the vehicle arriving at 13:25 and departing at 15:17, for a total stay of one hour and 52 minutes.

The appellant has questioned the operator’s authority to issue and pursue PCNs for this site.

The operator has provided a copy of a witness statement which has been signed the day after the date of the contravention, and does not confirm authority prior to this date. In combination with the only date stamped photograph of a sign being from 12 January 2017, I am not satisfied the operator has provided sufficient evidence to demonstrate it had the appropriate landowner authority on the date of the alleged contravention. As such, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal. For clarity, any issues the appellant has regarding potential breaches of the Information Commissioner’s Office (ICO) regulations by the operator are outside of POPLA’s remit. This would be a matter between the appellant and the ICO.

I am just constructing my appeal for the same ECP car park that you have just appealed successfully against ! Thanks a lot this is really useful, I will also now use the ANPR angle that you were successful on !! my vehicle was an alleged overstayer too !

henrik777

Interesting result today.

I note we have placed this appeal on hold because it appeared as though the circumstances of the appeal related to the issue of Byelaws.


Having considered the evidence provided by both parties, it is clear that the operator has issued the charge for stopping/waiting in an area that does not allow for this type of activity. Furthermore, the operator has subsequently issued a parking charge for failing to adhere to the terms and conditions at the location. However, if no contract were formed, there would be no basis under which to seek payment of the charge from the motorist. As such, I must examine the signage in place at the location to establish if a contract has been formed between the operator and the appellant. Specifically, I note that the signage in place at the location simply states: “Restricted Zone No stopping at any time to drop off or pick up. WARNING ENFORCEMENT CHARGE OF £100”. From this, I acknowledge that the operator has made it clear that motorists should not “Restricted Zone No stopping at any time to drop off or pick up. WARNING ENFORCEMENT CHARGE OF £100”at the location. However, it is my belief that the wording used on the signage is a statement of the restrictions in place and does not amount to an offer of a contract with the motorist in question.

Additionally, I have considered the signage in place at the location and note that this refers to an “enforcement charge”. I consider this to be a misrepresentation of authority in accordance with Section 14 of the BPA Code of Practice. Within this, it states as follows: “14.1 You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority. You will be breaching the Code if you suggest to the public that you are providing parking enforcement under statutory authority”. 14.2 You must not use terms which imply that parking is being managed, controlled and enforced under statutory authority. This includes using terms such as ‘fine’, ‘penalty’ or ‘penalty charge notice’.” From this it is clear that parking operators who are approved by the British Parking Association should not misrepresent its authority to the public.

Having considered the use of the phrase “enforcement charge”, it is my belief that motorists could mistakenly believe that the parking operator is carrying our enforcement work “under the statutory powers of the police or any other public authority”. From this, I can only conclude that the operator has failed to adhere to the minimum requirements of the BPA Code of Practice also. As I am not satisfied that the appellant entered into a contract with the operator, I can only conclude that the operator has failed to provide sufficient evidence to POPLA to document that it issued this PCN correctly.

Anonamouse

Heard today that MET are not going to provide evidence so I have won my appeal to POPLA.

Facts were that I am the registered keeper, my vehicle was parked at West Ruislip station - the marked bays were full but there are places you can park which don't obstruct other drivers so the driver did that and paid for parking. On return there was a sticky notice with the usual £100 charge. There were a few other cars with similar despite not causing an obstruction either.

The PCN cited "parking out of bay against byelaw 14". My defence as registered keeper was:

1. No obstruction caused - byelaws do not reference the term "out of bay" (although signs say you should be parked in a bay, this is a contractual term so they are trying to mix and match byelaws and contract). In fact no obstruction was caused to already parked cars or to anyone trying to enter or leave the car park.

2, No keeper liability - I appealed to MET before the postal notice to keeper. They didn't send a postal notice to keeper and at no stage was the driver identified. Also, although I am the keeper I am not the owner. I don't see how they could hope to make the charge stick against the keeper in these circumstances.

3. Byelaws can only be enforced by magistrates court, not by MET. I cited the FOI answer from what do they know to back this up.

Although I'm pleased to have won, I'm still annoyed. MET were trying it on, Chiltern Rail got paid their parking fee and they still tried to screw another £100 out of me. Not only that but they refused my initial appeal and then buckled straight away at POPLA knowing they had next to no case. The result of all this is that the driver has been told not to park in that car park again which means they will very rarely use Chiltern Rail again. So they have cost their landowner a (formerly) regular customer.

In a way I was looking forward to seeing POPLA ruling on a byelaws case after they decided to keep hearing them, I can only guess MET thought they were going to lose and didn't want to set a precedent.

Umkomaas

So they have cost their landowner a (formerly) regular customer.

Please write and tell them. The sooner the contract principal really sees they are losing business as a direct result of their agent, the sooner we see some sense banged into the private parking sector.

Although I'm pleased to have won, I'm still annoyed. MET were trying it on, Chiltern Rail got paid their parking fee and they still tried to screw another £100 out of me. Not only that but they refused my initial appeal and then buckled straight away at POPLA knowing they had next to no case

If you now want to turn the tables and return the grief with interest, you could sue them for misuse of your data under the DPA. It's not for the faint-hearted or for those who think it's an easy run, assuming the forums will do most of the work - they won't. If you're prepared to put your back into this, the following will hopefully assist you.

DATA PROTECTION ACT GUIDANCE

First and foremost, please read thoroughly this extensive guidance put together by MSE poster Timothea. This will give you the background and conditions for you to consider and determine whether you might have a case to pursue.

https://forums.moneysavingexpert.com/discussion/5585388

Other Sources

http://www.parkingcowboys.co.uk/data-protection-act

Some apposite blogs from the Parking Prankster:

http://parking-prankster.blogspot.co.uk/2016/12/liverpool-business-park-motorist-wins.html

http://parking-prankster.blogspot.co.uk/2016/11/smart-parking-settle-out-of-court-for.html

Latter part of this blog:

http://parking-prankster.blogspot.co.uk/2016/12/heath-parade-graham-park-way-scam-site.html

On PePiPoo, regular contributor 'Lynnzer' seems to be taking a lead in pushing for the pursuit of DPA breaches by PPCs. He has written a number of well constructed Letters Before Claim requiring the PPC to pay the motorist between £250 and £750 as compensation for the stress they have been put under by the PPC, or risk the matter resulting in a formal claim at the Small Claims Court. .

Do a search there to get the hang of what this is all about and whether you might want to take this fight back to the PPC.

http://forums.pepipoo.com/index.php?act=SF&s=&f=60

Anonamouse

Thanks Umkomaas

One of the things I would do differently next time is that I appealed direct before a postal NTK so I have no evidence that MET accessed my details through the DVLA and therefore I don't think I have a case there. I agree otherwise that pursuing them over that would be worth a go.

I do intend to draw this to Chiltern's attention. They should be putting pressure on their operative not to try to rip off their customers in this way. To be prudent I should wait until the time for them to prosecute has timed out.

thegentleway

Decision: Successful
Assessor Name: Linda McMillan
Assessor summary of operator case:
The operator's case is that the appellant parked on site without purchasing the required parking time.

Assessor summary of your case:
The appellant states that he did purchase the required parking time.

Assessor supporting rational for decision:
In this instance, I note that the operator has issued a Parking Charge Notice (PCN) and made reference to the terms and conditions when doing so. However, within the evidence provided it has also referred to byelaws being applicable. While I note that the PCN has been issued under terms and conditions, I find that it reasonable to expect that the motorist would have been confused by the manner in which it has been issued. Within this evidence pack, the signage clearly states, “Terms and conditions and Railway Byelaws apply…” Additionally, I note that if the operator were intending to issue a PCN in reliance on terms and conditions, its reference to byelaws could be interpreted as falling foul of Section 14 of the British Parking Association (BPA) Code of Practice. Within this it states as follows: “14.3 You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority. You will be breaching the Code if you suggest to the public that you are providing parking enforcement under statutory authority. 14.4 You must not use terms which imply that parking is being managed, controlled and enforced under statutory authority. This includes using terms such as ‘fine’, ‘penalty’ or ‘penalty charge notice’.” Having considered this appeal, I acknowledge that the reference to byelaws within the evidence pack could lead a motorist to believe that the “enforcement work is carried out under statutory powers of the police or any other public authority.” Additionally, Section 22.1 of the BPA Code of Practice states: “Under the Code you must have procedures for dealing fairly, efficiently and promptly with any communication from the motorist”. Based upon the evidence provided, I am not satisfied that I can confirm whether the PCN was issued under terms and conditions or byelaws. This is because the signage on site makes reference to PCN being issued under terms and conditions and byelaws, this is not clear and does not illustrate to motorist what parking restrictions are for terms and conditions. As I cannot confirm whether the terms and conditions of the site had been breached I conclude the PCN was issued incorrectly.

Thank you for all your help!

BT68

Another long-awaited Railway Byelaws success:

Your parking charge Appeal against APCOA Parking.

Thank you for your patience while we considered the information provided for your Appeal.
We have now reached the end of the Appeal process and have come to a decision. The decision is final and there is no further option for Appeal.

The Operator issued parking charge notice number xxx, arising out of the presence of a vehicle with registration mark xxx

The Appellant Appealed against liability for the parking charge.

The Assessor has considered the evidence provided by both parties and has determined that the Appeal be Allowed.
The Operator should now cancel the parking charge.

Assessor's summary of the operators case: A Parking Charge Notice (PCN) was issued as the appellants vehicle was parked without a valid payment.

Assessor's summary of the appellants case: The appellant has appealed as the registered keeper and advised the charge is not a genuine pre estimate of loss. The appellant has stated the signage is not prominent and they have questioned the operator's authority to operate on the land. They have advised the contract contains unfair terms and they have disputed the provisions of Protection of Freedoms Act (PoFA 2012) being complied.

Reasons for the Assessor's determination: In this instance, I note that the operator has issued a Parking Charge Notice (PCN) and made reference to the terms and conditions when doing so.
However, within the evidence provided it has also referred to byelaws being applicable. While I note that the PCN has been said to have been issued solely under terms and conditions, I find that it reasonable to expect that the motorist would have been confused by the manner in which it has been issued.

Additionally, I note that if the operator were intending to issue a PCN in reliance on terms and conditions, its reference to byelaws could be interpreted as falling foul of Section 14 of the BPA Code of Practice.

Within this it states as follows:
"14.3 You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority. You will be breaching the Code if you suggest to the public that you are providing parking enforcement under statutory authority.

14.4 You must not use terms which imply that parking is being managed, controlled and enforced under statutory authority. This includes using terms such as 'fine', 'penalty' or 'penalty charge notice'."

Having considered this appeal, I acknowledge that the reference to byelaws within the evidence pack could lead a motorist to believe that the "enforcement work is carried out under statutory powers of the police or any other public authority.

Additionally, Section 22.1 of the BPA Code of Practice states:
"Under the Code you must have procedures for dealing fairly, efficiently and promptly with any communication from the motorist."

From the evidence provided I am not satisfied that motorists would understand the terms and conditions of the site. This is because I am not satisfied that the signage is clear as the signage provides mixed messages regarding the way in which it issues PCN's on the site in question. Therefore, the motorist does not have a fair chance to produce an informed appeal.
Overall, I cannot conclude that the appellant failed to comply with the terms and conditions. As such, I conclude the PCN was issued incorrectly.

Accordingly, the Appeal is Allowed.

Yours sincerely

Rebecca Etim
POPLA Assessor

P.S. I'm expecting a few more of the same to come through soon :-)

gerbilpasty

DecisionSuccessful
Assessor NameEsther Sargeant
Assessor summary of operator case
The operator issued a parking charge notice (PCN) because the vehicle remained at the car park for longer than the stay authorised.

Assessor summary of your case
The appellant states the signage is not visible during the night time hours. He states there are not enough signs in all areas of the car park. The appellant states the operator has not shown who is liable for the charge. The appellant has questioned the accuracy of the ANPR system and ANPR signage.

Assessor supporting rational for decision
Upon review of the evidence, I am not satisfied that the driver has been identified sufficiently. In order to transfer liability from the driver, to the registered keeper of the vehicle, the strict provisions laid out in the Protection of Freedoms Act 2012 (PoFA) must be adhered to. Upon review of the PCN, I am satisfied that the operator has complied with PoFA. As such, the keeper is now liable for the charge. The terms and conditions of the site state: “1/12 hours max stay…Aldi Customers Only…Failure to comply with the following will result in a Parking Charge of: £70”. The operator issued the PCN on 25 August 2016 to vehicle registration XXXX XXX because the vehicle remained at the car park for longer than the stay authorised. The site operates Automatic Number Plate Recognition (ANPR) cameras. The cameras captured the motorist entering the site at 22:13 on 19 August 2016, exiting at 00:04 on 20 August 2016; the period of stay was one hour and 51 minutes. The appellant states the signage is not visible during the night time hours. He states there are not enough signs in all areas of the car park. Section 18.3 of the British Parking Association (BPA) Code of Practice states: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. Upon review of the operator’s case file, it has not provided photographs of the signage at night time or in darkness. Considering the appellant’s grounds and the time the vehicle was recorded to be in the car park, POPLA would expect the operator to address this with evidence of signage in darkness. Ultimately, the burden of proof lies with the operator to show that the appellant has not complied with the terms and conditions of the car park. As such, I cannot determine the motorist was able to view the terms and conditions at the time of parking. As such, I am not satisfied the PCN was issued correctly. Accordingly, I must allow the appeal. I acknowledge the appellant raised other grounds of appeal. However, as I have already allowed the appeal, it is not necessary for me to consider them.