POPLA Decisions

The_Deep

If the driver had concerns about the validity of the signage and did not feel that, as a result, they could comply with the terms and conditions in force, they had the opportunity to reject the contract by not parking in the car park

Is it PoPLA' s place to write such tosh. If you need a load of stuff from Tesco, you should park in their car park. If their contractors T&C are insufficient to form a contract it is their problem, not that of Tesco's customers.

DoaM

Are POPLA morphing into the IAS?

faisal93

DecisionSuccessful

Assessor summary of operator case
The operator’s case is that it issued a Parking Charge Notice because the driver exceeded the maximum time allowed.

Assessor summary of your case
The appellant has raised multiple grounds of appeal. They are as follows: • The appellant says that 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. • The appellant states 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 says that there is no evidence of Landowner Authority. • The appellant states that the operator has produced photographic evidence that is not compliant with the British Parking Association (BPA) Code of Practice. • The appellant says that the signs fail to transparently warn drivers of what the Automatic Number Plate Recognition (ANPR) data will be used for, which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations s due to inherent failure to indicate the 'commercial intent' of the cameras.

Assessor supporting rational for decision
The operator’s case is that it issued a Parking Charge Notice because the driver exceeded the maximum time allowed. The site operates using an Automatic Number Plate Recognition (ANPR) system. The cameras captured the driver’s vehicle registration, XXXXXXX, entering the site at 11:02, and exiting at 15:09. The total period of stay was four hours and seven minutes. 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 PoFA 2012 must be adhered to. As a Notice to Keeper has been issued straight away, then the Notice to Keeper will need to comply with section 9 of PoFA 2012. In POFA 2012 it states under section 9 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 Notice to Keeper that was dated 25 August 2017 states, “You are warded that if, after 28 days, the Parking Charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the Parking Charge from the registered keeper.” The Notice to Keeper 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.

Coupon-mad

In reference to this, the Notice to Keeper that was dated 25 August 2017 states,

“You are warned that if, after 28 days, the Parking Charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the Parking Charge from the registered keeper.” The Notice to Keeper 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.

Boom! As we said only days ago on this thread:

https://forums.moneysavingexpert.com/discussion/comment/73372738#Comment_73372738

Britannia have got the wording wrong...again!

DJ_Davy

JD Parking Consultants

Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN), because the vehicle with registration XXXX XXX, parked without a permit or authorisation at Cxxxx Pxxxx House on 14 July 2017.


Assessor summary of your case
The appellant believes the operator has failed to adhere to the Protection of Freedoms Act (POFA) 2012. He is questioning the operator’s authority to issue and pursue PCNs for this site. He states the signage is not sufficient and the rationale for the amount of the charge is “flawed”. The appellant has provided two images of a sign.


Assessor supporting rational for decision
The terms and conditions state that the amount of the PCN is “£100”. The operator’s case file includes photographs of the signage at the site clearly showing these terms. 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. 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. The operator has provided a copy of the Notice to Keeper sent. As the driver of the vehicle has not been identified, the Notice to Keeper will need to comply with section 8 of POFA 2012. Section 8, paragraph (2)(c) of POFA 2012 states: “state that a notice to driver relating to the specified period of parking and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f)”. Section 7, paragraph (2)(b) states: “inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges…”. The operator’s signage and the Notice to Driver both describe the amount of the charge as being £100. The Notice to Keeper provided by the operator states: “Parking Charge Notice - £120.00”. Therefore, I cannot be satisfied that the operator has adhered to the requirements of POFA 2012. As such, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal. As the appeal has been allowed, there is no need to consider any other grounds of appeal.


I WON MY APPEAL THANKS TO ALL THE HELPFUL INFORMATION ON THIS FORUM. CHEERS GUYS!
:beer::T:D:D:D

Umkomaas

Well done DJ_Davy, especially with no handholding from here. Lesson for many that this can be done on your own. :T.

Which parking operator please?

ValL

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 8512697757.

Smart 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

POPLA Team
Basically purchased ticket without entering vrm. PCN issued for breaching advertised terms and conditions.
Thanks for all advice given on this site.

Coupon-mad

Well done to the latest winners!

And if a rare case is lost at POPLA, that's never a reason to panic and pay. We don't pay scammers.

ameliecharlotte

Smart Parking PCN at Brook Street, Kingston Upon Thames
Appeal Successful....

An appeal has been opened with the reference 8512707759.

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

Yours sincerely
POPLA Team



Dear Sir/Madam,

Re: Parking Charge Reference number xxxxxx Vehicle registration xxxx

I am the driver of the above vehicle and have received the above demand from Smart Parking. My appeal to Smart Parking was rejected on xxxx and they gave me POPLA code xxx.

The basis of my appeal is on the following grounds:
1) The minimum grace periods was not allowed by the operator
2) The signage not clear and legible
3) The ANPR system is neither reliable nor accurate, Time on site is not parking time
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
5) Entry times differs to payment time.
6) Keeper liability

1.) Lack of Observation and Grace periods either side of allowed parking time.
The charge that was levied is unreasonable for overstaying in the car park for 12 minutes. British Parking Association code of practice (BPA CoP) states:
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 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.

The driver entered the barely signed car park and it took 7 minutes grace period to decide whether the area which is surrounded by construction signs was even a carpark, locate an available car parking space, walk, queue and pay for the ticket.
The driver paid for 1 hour of parking from xxx pm to xxx pm for the duration of their stay. Payment was made within the premises and the driver was finished parking and returned to the vehicle within the paid for hour. A further 5 minutes grace period was used in order to leave the car park which is well within the reasonable time. Smart Parking state that the above mentioned vehicle entered xxx Street carpark at 4.05pm and exited at 5:18pm and paid for 1 hours parking.

Evidence of this was provided to Smart Parking who responded to suggest regardless of the situation, payment should have been made for the 12 minutes alleged overstay. And that a valid ticket is required for the duration of the stay, calculated from entrance to exit. Even if it took 12 minutes to exit this is still reasonable and within BPA CoP. There are no boom gates giving a ticket that print your arrival time and that you pay for upon exit and no clear signage that you are being charged from the moment your car enters the site.

Good car parking practice includes ‘grace’ periods and account for situations like above

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation ...

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.!
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
So the BPA believes that 5-10 minutes’ observation' period is acceptable depending upon various factors (e.g. Christmas shopper queues) and then you must allow a MINIMUM of another ten minutes at the end - and Mr Reynolds says: ''there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.'

The Signage on entry to xxx Street Car Park is not clear detailing the grace period, when the parking period begins and its parking charges. (see attached – Image.

2.) 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.


18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. 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. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.
18.4 If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes: • specifying the sum payable for unauthorised parking • adequately bringing the charges to the attention of drivers, and • following any applicable government signage regulations.

The signage before entering the car park states “purchase a parking ticket for the duration of your stay” which the driver complied with. The sign on entry has no reference to when the parking period begins (see attached – Image of entry sign).

The POPLA annual report 2016 states:

In an ANPR controlled car park where no statement on the signs indicates that the parking period begins on entry to the car park, as opposed to when a vehicle parks, we may discount the amount of time between entry and parking when calculating the grace period at the end
of the contract. This is because the average motorist would assume that a period of parking begins when they park the vehicle, and not when they enter the car park.! Upon entering xxx street carpark the sign is not even on the side of the road that the motorist drives in but is on the right hand side of the road. It does not state that you are being charged upon entering.

The signage for the terms and conditions has very small font which is difficult to read and understand. They are unreadable due to the small font that has been used. The sign upon entering has a very small print that cannot be read even if zoomed in on let alone from the distance when driving a car. ANPR systems is a technical word that has no meaning to the average person who is not from a technical background so putting this on signs is not a clear explanation.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this


3.) ANPR system

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps. By close examination of the photographs, the details (time, date, licence plate) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text 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.

I would challenge Smart Parking Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).

BPA COP 20.5 states
When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.

4) Lack of standing/authority from landowner

Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent).!Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Smart Parking are entitled to pursue these charges in their own right.

I require Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this, it will not be sufficient for Smart Parking merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a, the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b, any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c, any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d, who has the responsibility for putting up and maintaining signs!

e, the definition of the services provided by each party to the agreement!

5.)The time of entry also differs to the time on the payment ticket so one would assume that the parking time begins from paying for the ticket as the exit time displayed on the same ticket is two hours after payment has been made.

It could take up to 5-10 minutes to purchase a ticket due to having to find a park, locate and walk to the machine, and queue up with others to purchase a ticket. Therefore, grace period should be accounted for in this situation due to the terms contradicting with entry time and start time of the payment ticket.


6.) If Smart Parking want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and Smart Parking have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, your 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 Smart Parking have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.

The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.

I appreciate you taking the above into account during your objective considered assessment.


Regards,




DJ_Davy

Umkomaas wrote: »

Well done DJ_Davy, especially with no handholding from here. Lesson for many that this can be done on your own. :T.

Which parking operator please?

Thanks! It was JD Parking Consultants/Parking Collection Services