POPLA Decisions

PGHarper

POPLA case: unsuccessful
Date of Offence: 02/08/2016
Portishead Marina Quays
Date of Decision: 30/01/2017
Assessor Name: Alexandra Wilcock
Assessor summary of operator case: The driver failed to purchase the appropriate parking time.

Assessor supporting rational for decision:
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. After further consideration, it is clear that the operator issued a Parking Charge Notice (PCN) to you because you failed to purchase a valid pay and display ticket and there is no reference to it replying on Byelaws when doing so. As such, my decision will look to establish if the parking contract was formed and if it was, if you failed to adhere to the terms and conditions as alleged by the parking operator. The terms and conditions of the site state “Parking tariffs apply 24 hours a day, 7 days a week. 15 minutes FREE, 1 additional hour £1.00”. The operator has issued a £100 Parking Charge Notice (PCN) due to the driver failing to purchase the appropriate parking time. The operator has provided photographic evidence which shows the site is monitored by an Automatic Number Plate Recognition (ANPR) system. From the images provided from the day in question, it shows the appellant’s vehicle entering the car park at 16:31 and exiting at 17:02. From this I am satisfied that the appellant remained on the site in question for 31 minutes. The appellant states there is no keeper liability as the site is covered by Byelaws and is not relevant land. I note the appellant’s comments however, I can see from the operator’s case file that the PCN and land in question is relevant land. The operator has issued the PCN under terms and conditions and makes no reference to Byelaws. The appellant states the operator has not shown that the individual who it is perusing is the driver of the vehicle. I note the appellant’s comments however, if the operator has not identified who the driver of the vehicle was on the day in question it can use the Protection of Freedoms Act (PoFA) 2012 to transfer liability from the driver to the Registered Keeper. After reviewing the Notice to Keeper provided by the operator, I am satisfied that the operator has met the requirements of PoFA 2012 therefore successfully transferring liability. The appellant states the operator does not have any landowner authority to issue PCN. I note the appellant’s comments however; the operator has provided documentation which shows it has landowner authority to operate the site and issue PCN’s. The appellant states there is inadequate signage on site. The operator has provided photographic evidence of the signage on site to rebut the appellant’s claims. From the evidence provided, I am satisfied that the signage is clear easy to read and understand. The appellant states the operator did not allow the reasonable grace period required under the British Parking Association (BPA), Code of Practice. I note the appellant’s comments however; the appellant has not provided any reason to why he remained on site for 31 minutes without making an additional payment for the time parked on site. As he has not provided any reasoning to why he could not make an additional payment or to why he could not leave site within the correct time, I am satisfied that the operator does not need to allow a grace period. Furthermore, I do not deem 16 minutes as a reasonable grace period. The appellant states there is inadequacy of the ANPR cameras. In terms of the technology of the ANPR cameras themselves, the British Parking Association (BPA) audits the ANPR systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate. Independent research has found that the technology is generally accurate. Unless POPLA is presented with sufficient evidence to prove otherwise, we consider the technology was working at the time of the alleged improper parking. The appellant states the signage on the site does not notify the driver that Parking Eye intend to exercise its rights under the PoFA 2012. I appreciate the appellant’s comments however; the operator does not need to reference PoFA 2012 on the signage on the site. Furthermore, regardless of whether this was displayed on the signage, this would not have affected the drivers parking on the day in question. The appellant states there is no legitimate interest, as the 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. 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, 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. I can see from the evidence provided that the appellant remained on site therefore, agreeing to comply with the terms and conditions. I am satisfied that the signage clearly informs motorists that they must pay the appropriate fee for parking. As the appellant remained on site without paying the appropriate parking fee, he has failed to comply with the terms and conditions. As such, the PCN was issued correctly.

The_Deep

Surely this car park is covered by bye laws?


https://www.bristolport.co.uk/sites/default/files/marine-documents/first-corporate-shipping-general-byelaws.pdf

Coupon-mad

The_Deep wrote: »

Surely this car park is covered by bye laws?


https://www.bristolport.co.uk/sites/default/files/marine-documents/first-corporate-shipping-general-byelaws.pdf

Yes - as covered in the OP's appeal - but POPLA don't get it:

https://forums.moneysavingexpert.com/discussion/comment/72018137#Comment_72018137

Complaint to John Gallagher called for - again.

MontgomeryBurns

henrik777 wrote: »

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.”


Anyone know where the POPLA appeal decision text above actually came from please?

Thanks

AlexTodd97

3/3 wins now against F1rst Parking. I appealed for my friend who got this PCN at Winchester University. I didn't expect this ground of appeal to win for me! they covered up the signatures on the contact. Thanks to all on the forum who have helped!

Verification Code

2613436751

Decision Successful
Assessor Name:Amy Butler
Assessor summary of operator case
The operator’s case is that the appellant parked without a parking ticket or permit.

Assessor summary of your case
The appellant has raised several grounds of appeal. These are as follows: • The signage is not prominent, clear or legible. • No driver liability. • The Notice to Keeper is not compliant. • No evidence of landowner authority. • The parking charge envelope is not compliant.

Assessor supporting rational for decision
The operator has provided photographic evidence of the terms and conditions, as displayed at the site, which states “Permit Holders Only; A Parking Charge Notice (PCN) of £60 will be issued failing to display a current, valid permit in the front windscreen at all times; A discounted rate of £30 is offered if PCN is paid within 14 days”. The operator has provided photographic evidence of the vehicle #### ### at the site, on 10 November 2016. The operator has issued the Parking Charge Notice (PCN) as the appellant parked without a parking ticket or permit. The appellant has raised several grounds of appeal. These are as follows: • The signage is not prominent, clear or legible. • No driver liability. • The Notice to Keeper is not compliant. • No evidence of landowner authority. • The parking charge envelope is not compliant. 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) sets out the requirement for operators to own the land or to have written authority from the landowner to operate on the land. The operator has provided a copy of the landowner agreement; however the operator has redacted the names of the people who have signed the contract. As I am unable to determine who has signed the contract, I am unable to conclude if the PCN has been issued correctly. Accordingly, I must allow the appeal. I note that the appellant has raised further grounds of appeal; however I do not need to look at these as I have allowed the appeal

henrik777

MontgomeryBurns wrote: »

“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.”


Anyone know where the POPLA appeal decision text above actually came from please?

Thanks

There is no appeal, popla reference or assessor name from where that came i'm afraid. I don't wish to spam another forum, although you could probably find it easily if you googled it.

CPLKC

Please may somebody tell me how to start my own thread? Can't figure it out at all and really need advice!

Redx

the RED new thread button , top left of this parking forum

click it ,and post your own thread

it really is THAT SIMPLE

Fruitcake

Redx wrote: »

the RED new thread button , top left of this parking forum

click it ,and post your own thread

it really is THAT SIMPLE

Or BLUE New Thread button. It depends on your site settings.

Eebe

Success against Highview Parking at Coventry Airport Retail Park, owned by LondonMetric Property. Overstayed 3 hours free parking due to newly introduced poor signage. Appealed to HP on this basis but was rejected. Appealed to POPLA and HP decided not to contest.