POPLA Decisions

perseat

https://forums.moneysavingexpert.com/discussion/5633739

Decision: Successful
Assessor Name: Eileen Ioannou
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) but failed to provide evidence.

Assessor summary of your case
The appellant says that the notice to keeper is not compliant and the operator has not shown who there are pursing. The appellant says there was no breach of byelaws and the signage at the site is not prominent, clear or legible. Further the appellant says that the operator does not have a landowner contract or legal standing to form contracts or charge drivers.

Assessor supporting rational for decision
By issuing the appellant with a PCN the operator has implied that the appellant has not complied with the terms and conditions of the car park in question. The operator contacted POPLA to advise that the appellant’s details did not match their records; as such, the operator advised POPLA that it could not accept an appeal due to invalid information. In the appellant’s evidence to POPLA they have provided a copy of the PCN, which shows that it was issued to a Black Seat on 7 March 2017 with vehicle registration XXXX XXX. In its rejection letter the operator referred to the incident date as 9 March 2017 and provided photographic evidence of a black Chrysler with a vehicle registration of YYYY YYY. The photograph is time and date stamped showing a date of 9 March 2017. On this occasion, the operator has not provided any evidence to POPLA. Further, the operator has not corroborated the queried information. It is the duty of the operator to provide evidence to POPLA of the terms and conditions that the appellant did not comply with and evidence that the appellant did not indeed comply with these terms and conditions. As the operator has not provided a response to the appeal, it has not demonstrated that the PCN is valid. Accordingly, I must allow the appeal.

Umkomaas

Sounds to me that here's another potential DPA breach case.

PalaceJim

Yes I won! No grace period and bad signage! Thanks everyone.

https://forums.moneysavingexpert.com/discussion/5644298

Decision Successful
Assessor NameAlexandra Roby
Assessor summary of operator case
The operator’s case is that the appellant did not make sufficient payment for the duration of his stay.

Assessor summary of your case
The appellant’s case is that he was not allowed a grace period at the beginning and end of his parking session. The appellant is disputing the adequacy of the signage at the site and states that the signs do not explain the Automatic Number Plate Recognition (ANPR).

Assessor supporting rational for decision
Within his appeal to the operator the appellant has identified himself as the driver so the provisions of the Protection of Freedoms Act 2012 do not apply. The terms and conditions of the site state: “Parking Tariffs Apply. Up to 4 hours…£3.00. Up to 9 ½ hours…£5.00. Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The operator has issued the Parking Charge Notice (PCN) as the appellant did not make sufficient payment for the duration of his stay. While I note that the appellant has raised several grounds of appeal, my report will focus solely on grace periods as this supersedes other aspects of the appeal. The appellant’s case is that he was not allowed a grace period at the beginning and end of his parking session. The operator has provided images from the ANPR system, which show that the appellant’s vehicle entered the car park at 10:22 and exited at 14:37 on the day in question, staying for a total of four hours and 14 minutes. The whitelist lookup provided by the operator shows that the appellant made a payment for four hours of parking time at 10:31, nine minutes after he entered the site. This would mean that at the end of his parking session, the appellant would have taken six minutes to exit the site. Section 13.2 of the British Parking Association (BPA) Code of Practice states: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.” Section 13.4 of the BPA Code of Practice proceeds to state: “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes”. As the signage does not clearly state that parking time starts upon entry to the car park, in this instance, I would consider a total of 14 minutes a reasonable grace period to allow the appellant to decide whether to park his vehicle at the beginning of the contract, and to allow him to leave the site at the end of the contract. As such, I conclude that the PCN was not issued correctly. Accordingly, I must allow this appeal.

fogatgatwick

Decision
Unsuccessful

Assessor Name
XXXX


Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) because the motorist did not purchase the appropriate parking time.


Assessor summary of your case
The appellant states the operator has not followed its own appeals procedure. He states he paid using cash. He states he believes he may have entered the wrong registration number. He states his wife remembers him entering the correct payment.


Assessor supporting rational for decision
The terms and conditions of the site state: “Motorist must enter their full, correct vehicle registration when using he payment machine/terminal…Failure to comply with the terms & conditions will result in a Parking Charge of: £80”. The operator issued the PCN to vehicle registration XXXX because the motorist did not purchase the appropriate parking time. The site operates Automatic Number Plate Recognition cameras. The cameras captured the appellant entering the site at 13:59, exiting at 15:10 on 17 March 2017; the period of stay was one hour and 11 minutes. The appellant states the operator has not followed its own appeals procedure. He states he paid using cash. He states he believes he may have entered the wrong registration number. He states his wife remembers him entering the correct payment.

***

Though I note the appellant’s grounds regarding the operator’s appeals procedure, POPLA can only consider grounds in relation to the actual parking event. As such, we are unable to take into account any issues after the parking event, such as the appeals procedure or any customer service issues.

***

Section 19.3 of the British Parking Association Code of Practice states: “If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid…they may be liable for parking charges”. The operator has provided a system printout to evidence that no payment was made against the full and correct vehicle registration on the date of the event. This site uses ANPR cameras to capture vehicles entering and exiting the car park. The vehicle registration must be entered correctly to ensure that any payments are matched to the vehicle. Whilst a payment may have been made against the wrong registration, this payment would not correspond to a vehicle parked at the car park. As such, it would not be valid. Ultimately, it is the responsibility of the motorist to ensure they have entered their vehicle details fully and correctly, in order to make a valid payment. When deciding to park, it is the motorist’s responsibility to be aware of the terms and conditions of the car park and comply with these. On this occasion, the motorist failed to adhere to these by not purchasing the appropriate parking time. As such, I am satisfied that the PCN has been issued correctly. Accordingly, I must refuse the appeal.

Umkomaas

You can ignore this adjudication and then see whether PE issue court proceedings. I can't see a judge agreeing that what amounts to an unashamed penalty charge is legitimate. See how things unfold, no need to knee-jerk on this.

Couldey

Verification Code
2411297345

POPLA assessment and decision
27/06/2017

Decision Successful
Assessor Name Saf*** ******
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) as no valid pay and display/permit was purchased.

Assessor summary of your case
The appellant has raised several grounds of appeal such as: • No evidence of Landowner Authority • The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself • BPA Code of Practice - further non-compliance - photo evidence. • The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras. • No Keeper Liability • No Driver Liability • Grace periods unclear and not properly applied

Assessor supporting rational for decision
The operator issued a PCN to the appellant as no valid pay and display/permit was purchased. The appellant has raised several grounds of appeal such as: • No evidence of Landowner Authority • The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself • BPA Code of Practice - further non-compliance - photo evidence. • The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras. • No Keeper Liability • No Driver Liability • Grace periods unclear and not properly applied When a parking operator is pursuing a keeper as liable for a charge, it must satisfy the requirements of the Protection of Freedoms Act 2012 (PoFA 2012). Within PoFA 2012 it states at Paragraph 9(2)(f) that the notice to keeper must: “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;” As such, transfer of liability occurs after ‘28 days beginning with the day after the date the notice is given’. Within PoFA 2012, it further states that: “a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.” Therefore, it is clear that the date the Notice to Keeper was posted is the key date in determining when the 28-day period begins. Having considered the Notice to Keeper sent in this instance, the wording used is as follows: “You are advised that if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and the current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This notice is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the Act.” However, I note that the “Date Issued” referred to above is not the date the Notice to Keeper was posted and is instead, the date of the parking event. As such, it is clear that while the operator has attempted to comply with the requirements of Schedule 4 of PoFA 2012, its reference to the “Date Issued” is incorrect and the impact of this is that the keeper would not be given the correct length of time to provide details of the driver. On this basis, I can only conclude that the Notice to Keeper would fail to meet the strict requirements of PoFA 2012. Accordingly, I must allow this appeal.

Umkomaas

However, I note that the “Date Issued” referred to above is not the date the Notice to Keeper was posted and is instead, the date of the parking event. As such, it is clear that while the operator has attempted to comply with the requirements of Schedule 4 of PoFA 2012, its reference to the “Date Issued” is incorrect and the impact of this is that the keeper would not be given the correct length of time to provide details of the driver. On this basis, I can only conclude that the Notice to Keeper would fail to meet the strict requirements of PoFA 2012. Accordingly, I must allow this appeal.

Nice one. An assessor who seems to understand things. I guess that he/she is neither a former nail technician nor a budding writer of soft !!!!!!!

Thanks for posting this up @OP, as we see far fewer POPLA results than previously now with the deluge of court cases being pursued over the past 12 months.

I think (hope) we'll get to the point where any appeal to POPLA which is upheld is almost automatically followed up (subject to circumstances) with a claim against the PPC for a breach of the DPA principles.

I'm not suggesting that this is an easy process, but as 'loose precedent' cases start to gather some traction (later in the year), it will become as easy to whack out a MCOL claim against a PPC as it is for them to do so against a motorist.

Hopefully there will be some other (new) ambulance chasers who will take up the cudgels on behalf of the motorist to neutralise Gladstones, BWL, SCS, Wright Hassall and their likes, currently snouting in the trough of private parking litigation.

After all, there are far more motorists than PPCs to earn from!

The worm (hopefully) turneth!

CYPER

PPC: P4Parking
Decision - Successful
Assessor Name - XXXXXX
Assessor summary of operator case
On 17 April 2017 vehicle XXXXXX was issued with a Parking Charge Notice (PCN). This PCN was issued due to the motorist parking in a resident bay with a visitors permit.

Assessor summary of your case
The appellant has raised a number of grounds of appeal: 1. Not prominent signage and incorrect wording usage from all car park spaces 2. No standing or authority to pursue charges or form contracts with drivers 3. The charge is unconscionable 4. Charge is incompatible with terms under lease

Assessor supporting rational for decision
I note that the appellant has raised a number of grounds of appeal; however my assessment will focus solely on the operator not having the authority from the landowner to pursue charges nor form contracts with drivers. A PCN has been issued for the following reasons: the appellant has parked in a resident bay with a visitors permit. The appellant states he does not believe that the operator has the authority from the land owner to issue Parking Charge Notices. Section 7 of the BPA Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the land owner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” The operator has failed to provide POPLA with a copy of the contract between itself and the landowner and as a result, I cannot be satisfied that this meets the minimum requirements of the BPA Code of Practice. By issuing the appellant with a Parking Charge Notice, the operator has implied that the appellant has not complied with the terms and conditions of the car park in question. The burden of proof rests with the operator to show that the appellant has not complied with the terms and conditions of the car park. As the operator has not provided insufficient evidence to POPLA of the landowner authority which they hold, I cannot determine whether they had the permission to pursue charges or form contracts with drivers. Therefore, I can only conclude that the parking charge was issued incorrectly. As such, I am satisfied that the parking charge has been issued correctly. Accordingly, I must allow this appeal.

More information in this thread: https://forums.moneysavingexpert.com/discussion/5554969

Paid4Parking

Unsuccessful

Thread: 5677954 (sorry, not allowed to post a link)

Decision
Unsuccessful

Assessor Name
Emily Chriscoli

Assessor summary of operator case
The operator’s case is that the appellant’s vehicle was parked on site without clearly displaying a valid permit.

Assessor summary of your case
The appellant has raised several issues as grounds for appeal. These are as follows: • The appellant feels that the signage displayed on site is insufficient • The appellant has questioned the operator’s authority in issuing and pursuing Parking Charge Notices (PCNs) • The appellant believes that the operator has not identified who was driving the vehicle on the date in question • The appellant does not feel that the amount of the PCN is a Genuine Pre-estimate of Loss • The appellant believes that the issuing of this PCN is incompatible with the rights under his lease • The appellant was parked in her own designated parking space on the date in question

Assessor supporting rational for decision
Before I begin my assessment of this appeal, I feel it is appropriate to comment that although I am aware that the appellant has received multiple PCNs, POPLA works on a case by case basis. As such, any outside factors, such as previous similar contraventions or other on-going appeals, have no bearing on our decision making. My report will focus solely on the events that occurred on 8 May 2017, under verification code 5161437016. Additionally, I note the appellant has maintained throughout the appeal process that the operator has failed to establish who the driver of the vehicle was on the date in question. While I acknowledge this point, I also note that the appellant has stated “I parked my car in the space, however I forgot to display the permit”. As a result, I am satisfied that the appellant has identified herself as the driver of the vehicle on the date in question. When it comes to parking on private land, a motorist accepts the terms and conditions of the site by parking their vehicle. The terms and conditions are stipulated on the signs displayed within the car park. The operator has provided both PDF document versions and photographic evidence of the signage displayed on site. The signs state “This land is private property. By parking here, you are entering into a binding contractual agreement. All vehicles parked within these private grounds and not displaying an authorised parking permit or parked outside of this developments parking regulations will be charged via the issuance of a Parking Charge Notice. Parked contravening the following: Parked displaying a disability badge without a valid estate permit. The parking charge will be issued in the form of a Parking Charge Notice totalling £100”. The operator has provided photographic evidence of the appellant’s vehicle from the date of the contravention, where it is clear that no permit has been displayed. Furthermore, in the appellant’s original appeal to the operator, she states that she forgot to display her permit on the date in question. In her grounds for appeal to POPLA, the appellant has advised that she believes the issuing of this PCN is “incompatible” with the rights of her lease. As a result, I would expect the appellant to provide POPLA with a copy of the lease document in order to substantiate her claims. On this occasion, the appellant has failed to provide a copy of a lease document or a tenancy agreement for my perusal. As such, while I acknowledge this particular ground for appeal, I am unable to take this point into consideration during my assessment. The appellant has questioned the operator’s authority from the landowner in issuing and pursuing PCNs. Section 7.1 of the British Parking Association (BPA) Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you authority to carry out all aspects of car park management for the site you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” In response to the appellant’s grounds for appeal, the operator has provided POPLA with a copy of the contract it holds between itself and the landowner. I note the operator advises that the contract started on 1 April 2016 and that the end date is “open” and therefore, the terms of the contract are “reviewed” on a 12 month period. As a result, I am satisfied that the operator has demonstrated its compliance with Section 7.1 of the BPA Code of Practice and therefore has the relevant authority from the landowner to issue PCNs on this land. 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, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “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.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act (PoFA 2012) it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. In summary, 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, I still feel that this is in the region of the £85 charge decided on by the Supreme Court. 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. By remaining parked on site, the appellant accepted the terms and conditions. On this occasion, by failing to display a valid permit, the appellant has failed to follow the terms and conditions of the signage at the site and as such, I conclude that the operator issued the PCN correctly.

DoaM

https://forums.moneysavingexpert.com/discussion/5677954