POPLA Decisions

waamo

This really does highlight the importance of not identifying the driver.

Coupon-mad

waamo wrote: »

This really does highlight the importance of not identifying the driver.

Indeed:

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”.

But heck, it's a residential case and only P4Parking. I doubt the contract is even with the landowner and the OP has primacy of contract (probably) in the lease.

Coupon-mad

The importance of not saying who the driver was, illustrated again. A rare case just lost at POPLA:

https://forums.moneysavingexpert.com/discussion/5662252

NCP at a station

Bogadala

Sorry Admin

I remember you moved my previous thread and not sure where to post the follow up to my post.

I can see it may not be in the right place and dont know how to move it. Can i request you to please accept my apology and move my post in the right place to get some help.

Thank you.

joncass

https://forums.moneysavingexpert.com/discussion/5650664

The operator in this case was UKPC. The link above is for the thread in this case. Below is the Assessor's decision.

Outcome Successful
Assessor Name Amy Butler
Assessor summary of operator case
The operator’s case is that the appellant did not park correctly within the markings of the bay or space.

Assessor summary of your case
The appellant has raised several grounds of appeal. These are as follows; •
The appellant states the operator has not complied with the Protection of Freedoms Act (PoFA) 2012 as PoFA 2012 on applied on relevant land. •
The appellant states there is no evidence to suggest that the operator has landowner authority to issue charges.
The appellant states a witness statement is not compliant. •
The appellant states the charge is unfair as defined in the Unfair Terms in the Consumer Contracts Regulations. •
The appellant states the charge is unreasonable and not a genuine pre-estimate of loss.
The appellant states the signs do not sufficiently show the sum of the parking charge. •
The appellant states the charge is an unlawful penalty charge. •
The appellant states the signs in the car park are not prominent, clear or legible. •
The appellant states the signage is forbidding. •
The appellant states the images are not accurate or valid.

Assessor supporting rational for decision
The operator has provided photographic evidence of the vehicle at the site, on 19 April 2017. The operator has issued the Parking Charge Notice (PCN) as the appellant did not park correctly within the markings of the bay or space.
The appellant has raised several grounds of appeal; however I will focus my report on the appellant stating that the charge is unreasonable and not a genuine pre-estimate of loss.
The appellant also states that the signs do not sufficiently show the sum of the parking charge.
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 British Parking Association (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 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 not sufficient to bring the parking charge to the attention of the motorist.
As such I am unable to determine that the PCN has been issued correctly and I must allow the appeal.

Umkomaas

however I will focus my report on the appellant stating that the charge is unreasonable and not a genuine pre-estimate of loss.

When I read that I thought you'd made a typo when stating appeal 'Successful'. GPEOL is really suicide stuff these days. Never give a POPLA assessor the opportunity to hit the GPEOL template button to reject the appeal.

But then I read the asessor's final paragraph:

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 not sufficient to bring the parking charge to the attention of the motorist.

So this appeal was successful, but on grounds of inadequate signage, not GPEOL. Good job you added signage into your appeal.

Good result, but you've skated over some thin ice in the process!

The_Deep

I won


POPLA APPEAL - Bye-Laws Land – No Keeper Liability

[FONT=Times New Roman, serif]This is an appeal about a Parking Charge Notice issued by the operator for an alleged breach of the the company's terms and conditions in a railway station car park. The operator confirms that this land is covered by Railway Bye- laws and therefore it is not relevant land for the purposes of the keeper liability provisions of Schedule 4 of The Protection of Freedoms Act, under which it says the charge has not been issued.. [/FONT]

[FONT=Times New Roman, serif]The operator does not know who the driver was, or the owner, and it would appear that they have made an assumption that was that person. If so, I put them to strict proof of this. [/FONT]

[FONT=Times New Roman, serif]If they are relying on Elliot v Loake, this was a criminal conviction obtained from forensic evidence and has been rejected by many judges as not relevent.[/FONT]

[FONT=Times New Roman, serif]If they are relying on the outcome of Beavis v Parking Eye in the Supreme Court the circumstances bear no resemblance. Beavis took place in a free car park in a shopping centre limited to two hours where there was no opportunity to purchase extra time, and overstayed by almost an hour. The PPC were paying £52,000 a year to manage this car park and PCNs were their only source of income. It was deemed that the charge of £85 was reasonable as there was a necessity to ensure a high turnover of traffic and to discourage abuse from railway commuters. [/FONT]

[FONT=Times New Roman, serif]In the present case, the parking fee was paid, there was no obstruction, and this therefore amounts to an unlawful penalty. [/FONT]

[FONT=Times New Roman, serif]Only the land owner, in this case the Train Operating Company, can take action, and only against the driver or owner, in a Magistrates Court, within six months of the date of the alleged offence, that date has now passed.[/FONT]

[FONT=Times New Roman, serif]Spaces were poorly marked, in some cases there was no marking at all, I attach a photographs taken a few weeks later and put APCOA strict proof that the markings were regularly maintained.[/FONT]

[FONT=Times New Roman, serif]The signs are difficult to read, being up to three metres off the ground with letters as small as 5mm.in white on a pale blue background. It is impossible to see how they are sufficiently prominent to form a contract. I would refer you to Excel v Martin Cutts where the judge disallowed the claim due to poor signs.[/FONT]

[FONT=Times New Roman, serif]The PCN was incorrectly issued by the wrong company under wrong law to the wrong person.. The time has now passed for the alleged offence to be prosecuted in a criminal court, and I request that this charge is therefore cancelled. [/FONT]

[FONT=Times New Roman, serif]Furthermore, it was issued eight months ago and appealed in time. It is only now, some seven months later have I been issued with a PoPLA code. In the meantime I have been subjected to a barrage of threats, begging letters, lies and inducements by debt collection agencies, contrary to the BPA Code of Practice... [/FONT]

[FONT=Times New Roman, serif]Finally, the amount the PPC think they are owed by someone. be it driver, keeper, or owner, is confusing. It started at £60/100, went up to £160, was then reduced to £75, and later came back to £60, rising to £100 if not paid. Do they not know how much they want?[/FONT]

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

APCOA Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely


+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Now they will find out just what a nasty old sod I am. Let the battle commence.

Umkomaas

Now they will find out just what a nasty old sod I am. Let the battle commence.

What? I'd have never thought that of you TD, a mere pu$$y cat, surely?

I guess it's DPA time for DPD?

surveymo2008

POPLA assessment and decision
25/07/2017
Verification Code

7961637070
DecisionSuccessful
Assessor NameLinda McMillan
Assessor summary of operator case
The operator has not provided any evidence.

Assessor summary of your case
The appellant’s case is as follows: • Spring Parking has failed to meet the strict requirements of the Protection of Freedoms Act 2012: • The Notice to Hirer is non compliant as it fails to properly repeat the information on any Notice to Driver and has inflated the sum to £120: • As the keeper of the vehicle the appellant states that it is his right not to name the driver: • The signs are not prominent, clear or legible from all parking spaces. The appellant has provided a 13 page document outlining his appeal in full and supplying links and photographs to support this.

Assessor supporting rational for decision
By issuing the appellant with a Parking Charge Notice (PCN), the operator has implied that the appellant has not complied with the terms and conditions of the car park in question. It is the duty of the operator to provide evidence to POPLA of the terms and conditions that the appellant did not comply with. The operator has not provided any evidence to POPLA. As the operator has not provided a response to the appeal, it has not demonstrated that the PCN is valid. Accordingly, I must allow this appeal.



Thanks again Coupon!

Coupon-mad

I thought Spring Parking would spring into action and hide, and they did!

Well done and thanks for taking the leap of faith with us to beat this scam.

https://forums.moneysavingexpert.com/discussion/5666441

They could not have won against a hirer/lessee appellant anyway - no PPC gets this right.