POPLA Decisions

The_Deep

I am not sure it is irrelevant Mr C. It may well help sway a DJ who is unfamiliar with the case.

DollyPeach

https://forums.moneysavingexpert.com/discussion/comment/72981934#Comment_72981934

Operator: Key Parking Solutions

POPLA assessment and decision
26/09/2017
Verification Code
5102357501
Decision
Successful

Assessor Name


Assessor summary of operator case
The operator’s case is that it issued a parking charge notice because the driver’s pay and display ticket had expired.

Assessor summary of your case
The appellant’s case is that the Parking Charge Notice has not sent a Notice to Keeper (NtK) that complies with the Protection of Freedoms Act (PoFA) 2012.

The appellant says that the operator has not shown that the individual who it is pursuing is in fact liable for the charge.

The appellant states that there is no evidence of landowner authority.

The appellant says that no contract was entered into between the operator and the driver or registered keeper.

The appellant says that 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.

The appellant states that the operator gave an insufficient grace period.

Assessor supporting rational for decision
The operator’s case is that it issued a parking charge notice because the driver’s pay and display ticket had expired. The operator has provided photographic evidence of the appellant’s vehicle, registration number, XXXX XXX parked at the site on 12 June 2017 at 12:51.

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.

For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to.

As a Notice to Driver (NtD) was issued before a NtK then the NtK will need to comply with section 8 of PoFA 2012.

In POFA 2012 it states under section 8 2 (f) “warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given— (i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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 NTK that was dated 8 August 2017 states, “If the balance of £124.00 remains outstanding after 28 days, the Creditor has the right to recover unpaid parking charges and any additional charges associated with recovery.” The NTK does not confirm the correct timescale. As a result, the Notice to Keeper does not comply with the regulations set out in PoFA 2012. Accordingly, I must allow the appeal.

mr_megs

Operator: Anchor Security Services, trading as Care Parking.

Thread detailing appeal with the templates I used: https://forums.moneysavingexpert.com/discussion/comment/73214014#Comment_73214014

DecisionSuccessful
Assessor NameLinda McMillan
Assessor summary of operator case
The operator’s case is that the appellant parked outside of tram hours.

Assessor summary of your case
The appellant’s case is as follows: • He states that the Notice to Keeper (NTK) is not complaint with the Protection of Freedoms Act 2012 (PoFA2012): • He states that the operator has not shown that the individual who it is pursuing is in fact the driver: • He states that the railway land is not “relevant land” and as such there is no evidence that the operator has the permission of the landowner to issue charges on this land: • He states that there is no breach of byelaws. The appellant has included a document expanding on the above as evidence.

Assessor supporting rational for decision
This appeal has been considered in conjunction with any evidence provided by both the appellant and the operator. After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified. The operator is therefore pursuing the registered keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in PoFA2012 The operator has provided a copy of the NTK sent. PoFA 2012 sets out to parking operators that: “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”. Having reviewed the NTK, I note the wording states “If after 28 days we have not received the full payment, we have the right to recover the parking charge amount that remains unpaid from the driver of the vehicle”. As such, I am not satisfied that the operator has met the minimum requirements of PoFA 2012. I can only conclude that on this occasion, the operator issued the Parking Charge Notice incorrectly. I note the appellant has raised other issues as grounds for appeal, however, as I have decided to allow the appeal for this reason, I did not feel they required further consideration.

Umkomaas

I note the wording states “If after 28 days we have not received the full payment, we have the right to recover the parking charge amount that remains unpaid from the driver of the vehicle”.

Well if their NtK literally says that, they’ve got no chance. I won’t point out the obvious in case they’re reading this. (Shakes head in incredulity!).:doh:

MUMMYOF4SMALLS

Many thanks to all those who helped. Much appreciated.
POPLA ASSESSOR- V. Worrell
Date 4.10.17
Assessor supporting rational for decision
The appellant has raised numerous grounds of appeal, but my assessment will focus solely on whether the PCN issued by the operator is compliant with PoFA. When a parking operator is pursuing a keeper as liable for a charge, it must satisfy the requirements of PoFA. 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.” Upon consideration of this evidence, I cannot confirm that the PCN has been issued correctly. Accordingly I must allow this appeal. I note that the appellant has raised further grounds for appeal in this case, however as I have allowed the appeal for this reason, I have not considered them.

Umkomaas

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.

Off to the dunces' corner then for ECP if that is their ‘attempt to comply with PoFA’!

Well done on beating them mo4s. :T

andreihoff

DecisionSuccessful
Assessor Name
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) to the appellant due to failure to park within a marked bay.

Assessor summary of your case
The appellant has raised a number of grounds for appeal these are: 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. There is also no entry sign visible when entering the street. This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park. The driver was simply unloading furniture into his flat which is not considered parking. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the British parking Association (BPA) Code of Practice. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge. They believe that the contract One Parking have, allows for unloading if the hazard lights were on, and the driver assures you that they were. One Parking are put to strict proof that (i) the hazard lights were not on, and (ii) that the contract with the landowner, shown in its entirety, does not in fact have the common clause found in their 'contracts' that states a car is exempt if loading/unloading with hazard lights on. If One Parking Solutions want to make use of the Keeper Liability provisions in Schedule 4 of the Protection of Freedoms Act (POFA) 2012 and One Parking Solutions have not issued and delivered a parking charge notice to the driver in the place where the parking event took place. The Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that OPS have complied with these BPA Code requirements for Notice to Keeper so require them to evidence their compliance to POPLA. They would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and the black and white photos. By close examination of the photographs, they are added as an overlay on-top of the photos in the lower left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing Software to add these with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

Assessor supporting rational for decision
The operator has issued a PCN due to failure to park within a marked bay. After reviewing the evidence provided by both parties, I am not satisfied that, the appellant has been identified as the driver of the vehicle 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. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in POFA 2012 must be adhered to. 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 section 9 of POFA 2012. I have reviewed the Notice to Keeper against the relevant sections of POFA 2012 and I am not satisfied that it is compliant. Section 9 (2) advises that 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; From the evidence provided to me, I can see that the Notice to Keeper states, “As the registered keeper of the vehicle, you are now invited to pay the unpaid parking charge or, if you were not the driver of the vehicle, to notify us (in writing using the form overleaf) of the name of the driver and a valid current address of service for the driver and pass this notice on to the driver. Should the registered keeper provide either an unserviceable name and/or address of the driver and/or the driver denies they were in charge of the vehicle at the time of the event, we may pursue the registered keeper for payment for this parking charge with reasonable assumption that the keeper was the driver at the time of event”. However, I am not satisfied that this meets the requirements as detailed by section 9 (f) of the PoFA 2012. As such, I am unable to confirm whether the operator issued the Notice to Keeper correctly.

Original thread

Keirday

Hi,
I buy a weekly parking ticket at an APCOA multi storey, I got 2 tickets in one week even though the warde knew I had paid for aweekly., I appealed to them and POPLA who have also given me a negative decision. I sent the following appeal:
["With reference to the above tickets, issued on 11/08/2017 and 14/08/2017. My fist ticket had slipped down the dashboard under the windscreen and the second had blown over to the reverse side.
As you can see from the enclosed photocopy I did pay for my parking, as I normally do on a weekly basis. This has happened once before and I have explained to your parking warden that I always pay for my ticket and display it clearly, I cannot be blamed if whilst I am away the [/I]ticket moves (wind through the vents or movement as cars pass by, I wish I knew). I asked him that if it happened again to please leave a note on my car asking to call in his office to show my ticket rather than issue me a ticket when he obviously knows that I have bought a weekly ticket, he must know this because it says so on the ticket, he also knows my car as it is quite distinctive and I have pointed it out to him.
I am obviously a regular, paying customer so please show a little good will as I have now provided evidence of my purchased ticket"
I am at my wits end now, surely it is a fault of theirs by issuing tickets from their machines that are not properly displayable, i.e. no sticky back. Acts of God I cannot help.....

Quentin

You should start your own thread if you need to after reading the newbies faq thread near the top of he forum.


Please delete your post from this thread!!

apcl73

Hi

Just wanted to let you know I won my POPLA appeal:

https://forums.moneysavingexpert.com/discussion/5687900

Thanks