POPLA Decisions

AIMINGHIGH123

My appeal to popla has been unsuccessful.
What is the next step?

Parking eye didn't even provide a case summary.

Here's what was said by the assessor:

DecisionUnsuccessful
Assessor Name
Assessor summary of operator case
The operator’s case is that the motorist did not make a payment for their parking session.

Assessor summary of your case
The appellant’s case is that the operator has not complied with the Protection of Freedoms Act 2012 (PoFA 2012). The appellant advises that the operator has not shown that the individual who it is pursuing is in fact liable for the charge. He states that a contract was not entered into between the operator and the motorist. The appellant has also disputed the operator’s authority to issue Parking Charge Notices (PCNs) on the land.

Assessor supporting rational for decision
The terms and conditions of the site state: “Parking Tariffs Apply. Up to 3 hours…£16.00. Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The operator has issued the PCN as the motorist did not make a payment for their parking session. Images from the operator’s Automatic Number Plate Recognition system have been provided, which show that the appellant’s vehicle entered the car park at 13:32 and exited at 15:34 on the day in question, staying for a total of two hours and one minutes. A copy of its whitelist payment lookup has also been provided, showing that the motorist did not make a payment to park at the site that day. The appellant’s case is that the operator has not complied with PoFA 2012. The appellant advises that the operator has not shown that the individual who it is pursuing is in fact liable for the charge. He states that a contract was not entered into between the operator and the motorist. When parking on private land, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore upon entry to the car park, it is the duty of the motorist to review and comply with the terms and conditions when deciding to park. In this case, it is not clear who the driver of the vehicle in question is, so I must consider the provisions of PoFA 2012 as the operator has issued the PCN to the keeper of the vehicle. The operator has provided a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of the PoFA 2012 and I am satisfied that it is compliant, and that the operator has successfully transferred liability and is able to pursue the keeper of the vehicle. The appellant has disputed the operator’s authority to issue PCNs on the land. Section 7.1 of the British Parking Association Code of Practice outlines to operators, “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 the authority to carry out all the aspects of car park management for the site that 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”. The operator has provided a copy of its supply agreement with the landowner. Upon review of this, I am satisfied that the operator has sufficient authority to issue PCNs on the land in line with the British Parking Association Code of Practice’s requirements. Ultimately, it is a motorist’s responsibility to ensure they comply with the terms and conditions of a site when parking on it. As the motorist did not make a payment for their parking session, they have failed to adhere to the site’s terms and conditions. As such, I conclude that the PCN was issued correctly. Accordingly, I must refuse this appeal.

Redx

there is no "next step" (people are always looking for a next step as if there are an infinite number of "steps")

its either pay up or be taken to court

if you wish for further advice, then ask for it in a thread of your own in this forum, referring back to this decision in your own thread

PE have 6 years to take you to court for enforcement , using MCOL

Edna_Basher

This oddball POPLA ParkingEye assessment needs to be read in conjunction with the following statements in the FAQs section of POPLA's website.

“It is not the role of the assessor to collect evidence or contact witnesses. They will look at the evidence that is provided to them from both parties and make a decision based on this alone”.

“Your appeal will be independently reviewed by one of our professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice”.

It must also be noted that nowhere in PE's evidence pack did they suggest that they were seeking to hold the hirer (company ABC Ltd) liable on the basis that the driver was an employee or agent of ABC Ltd. As it happens, the driver was not an employee of ABC Ltd.


"Decision: Unsuccessful

Assessor Name: XX

Assessor summary of operator case

The operator’s case is that the appellant did not purchase parking time for the time on site.

Assessor summary of your case

The appellant’s case is that the Parking Charge Notice (PCN) is on long term lease and they confirm that [ABC Ltd] is the hirer and for the purposes of the corresponding definition under the Protection of Freedoms Act 2012 (PoFA 2012) they set out below why it is not liable for this PCN.

* The appellant states that the operator failed to comply with the strict requirements of POFA 2012:
* The appellant states that the operator has no standing or authority to pursue charges or to form contracts with drivers using this particular car park:
* The appellant states that the car park signage was inadequate:
* The appellant states that the sum of £100 claimed by the operator is extravagant and unconscionable and contrary to Department of Health rules on NHS parking. The appellant has supplied a document expanding on the above as evidence to support the appeal. They have also supplied a copy of another POPLA assessment.

Assessor supporting rational [sic] for decision

In this case, the appellant is a company, ABC Ltd (ABC), and the driver of the vehicle is using the vehicle as a company vehicle. Companies are responsible for the actions of their agents. As this is a company vehicle provided to the driver for the purposes of carrying out their duties, I will be considering whether ABC is responsible for the charge as principal on behalf of their agent, who was driving the vehicle and is not known.

This appeal has been considered in conjunction with any evidence provided by both the appellant and the operator…………………

[the usual POPLA template copy and paste stuff about Beavis etc.]

…………… The appellant states that the operator failed to comply with the strict requirements of POFA 2012. While I appreciate you have indicated that the requirements of PoFA 2012 have not been met, we consider ABC responsible as principal rather than as hirer. Accordingly, we do not consider a failure to follow PoFA 2012 as relevant to our present reasoning. ABC has provided the company vehicle to the driver. We consider the company has, authorised their drivers to do what is necessary to carry out their duties using their company vehicle, which includes entering parking contracts. As such, we hold ABC responsible for the PCN as principal.

While I acknowledge the additional documents the appellant has supplied, this does not exempt the driver from complying with the terms of the site. Ultimately, it is the motorist’s responsibility to read the signs and act in accordance with the terms and conditions applicable to the site.

Therefore, from the evidence provided, I conclude that the operator issued the PCN correctly".


I take particular issue with the assessor's statement that "we consider ABC responsible as principal rather than as hirer". ParkingEye did not seek to hold ABC responsible as the driver's employee / principal so what gives POPLA the right to do so.

The assessor's statement that "we do not consider a failure to follow PoFA 2012 as relevant to our present reasoning" is rather ominous. I wonder if this new "reasoning" is the result of pressure from the BPA.

I suspect that this may not be a one-off dodgy assessment and that POPLA may have moved further down the slippery slope towards parity with the IAS.

Umkomaas

I suspect that this may not be a one-off dodgy assessment and that POPLA may have moved further down the slippery slope towards parity with the IAS.

I thought they’d bottomed out in terms of quality of decisions and there were signs that a number of assessor’s were starting to ‘get it’.

I can’t believe that the above rational (oh dear, they still remain in the dunce’s corner for spelin!) is the output of a single assessor working off their own initiative on this. The reasoning is too complicated for a one-off from a new assessor randomly flexing their muscles.

There was another case earlier today where, despite PE stating they were not pursuing under PoFA, POPLA found the keeper liable.

https://forums.moneysavingexpert.com/discussion/5702135

Ben-XL

Link to my thread - https://forums.moneysavingexpert.com/discussion/5727080

Parking company was Parking Ticketing Limited in Birmingham

Decision Successful
Assessor Name XX
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) for failing to display a valid permit.

Assessor summary of your case
The appellant states that a notice to keeper was never served, as such no keeper liability can apply. In addition the appellant says that the operator has not identified the individual it is pursing. The appellant says that the signage at the site is not prominent, clear or legible from all of the parking spaces and there is insufficient notice of the sum of the parking charge itself. The appellant says that the operator does not have the authority from the landowner to pursue charges in line with the British Parking Association (BPA) Code of Practice. Further, the appellant says the operator breached section 18.7 of the BPA Code of Practice and failed to provide a POPLA code.

Assessor supporting rational for decision
The terms and conditions at the site state “PERMIT HOLDERS ONLY IN CORRECT MARKED BAYS, SEE NOTICES IN CAR PARK FOR FURTHER DETAILS”. “VEHICLES PARKED IN THIS AREA MUST PARK IN THE CORRECT MARKED BAY AND CLEARLY DISPLAY A VALID P.T.L. PERMIT IN THE WINDSCREEN”. There are sufficient signs placed at the entrance and throughout displaying the terms and conditions offered. There is a helpline number on the signage to use if a motorist has any concerns about the site. Section 7.1 of the BPA Code of Practice states “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 the authority to carry out all the aspects of car park management for the site that 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”. Section 7.3 of the BPA Code of Practice States “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” I can see that not all of the requirements set out in the strict guidelines of the BPA Code of Practice have been adhered to. I accept that the contract is in date however, the boundaries to the site have not been defined, nor have the vehicle types for restrictions been identified or the hours of restriction for enforcement and control. In addition there is no reference to who is responsible for maintaining the signs. As such, I am not satisfied that the PCN has been issued correctly. All other submission points will not be considered within this appeal response. Accordingly, I must allow this appeal.

Billco_2

Original Thread
https://forums.moneysavingexpert.com/discussion/comment/73539430#Comment_73539430

Parking company was Euro Car Parks - In The Blue Boar, Billericay.

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

Assessor summary of your case: The appellant is appealing the PCN as the registered keeper of the vehicle stating they are not liable for the charge.

They state that the driver and three passengers attempted to pay at the site, after a period of 20 minutes they established that the machine was broken and entered the site to report the broken equipment.

The appellant states that the driver was advised that the machine failure was a regular occurrence and no alternative payment option given.

They state that they require proof that the machine was working on the date.

They state that the signage is insufficient; there is no evidence that the operator has authority to operator on the land.

Further, the appellant says that the signage is not compliant with section 21.1 of the British Parking Association (BPA) Code of Practice.

Assessor supporting rational for decision: The site operates Automatic Number Plate Recognition (ANPR).

The appellant’s vehicle registration, LM14 OFB, was captured entering the site at 14:10 and exiting at 16:51.

The appellant remained at the site for a period of two hours and 41 minutes.

The terms and conditions at the site state “WELCOME TO BLUE BOAR 24 HOUR PAY & DISPLAY”, “CHARGES APPLY AT ALL TIMES”.

There are sufficient signs placed at the entrance and throughout displaying the terms and conditions offered.

There is a helpline number on the signage to use if a motorist has any concerns about the site.

The operator issued a PCN to the appellant as no valid pay and display ticket/permit was purchased.

The appellant is appealing the PCN as the registered keeper of the vehicle stating they are not liable for the charge.

They state that the driver and three passengers attempted to pay at the site, after a period of 20 minutes they established that the machine was broken and entered the site to report the broken equipment.

The appellant states that the driver was advised that the machine failure was a regular occurrence and no alternative payment option given.

They state that they require proof that the machine was working on the date.

They state that the signage is insufficient; there is no evidence that the operator has authority to operator on the land.

Further, the appellant says that the signage is not compliant with section 21.1 of the BPA Code of Practice.

The terms and conditions of the contract are outlined in the signage advertised at the car park.

When assessing appeals we determine whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract offered.

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 The appellant has stated that they do not believe the operator has the authority to pursue charges or form contracts at this car park.

Section 7.1 of the BPA Code of Practice outlines to operators, “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 the authority to carry out all the aspects of car park management for the site that you are responsible for.

In particular, it must say that the landowner (or their appointed agent) requires you to keep to the BPA Code of Practice and that you have the authority to pursue outstanding parking charges”.

In this case the operator has not provided any evidence in response to this ground of appeal.

As such, I am not satisfied that the operator had the authority to issue this PCN.

I note that the appellant gave additional grounds for appeal in their submission.

As I have considered the lack of landowner authority for the site I will address the additional grounds.

Accordingly, I must allow this appeal.

Umkomaas

In particular, it must say that the landowner (or their appointed agent) requires you to keep to the BPA Code of Practice and that you have the authority to pursue outstanding parking charges”.

In this case the operator has not provided any evidence in response to this ground of appeal.

As such, I am not satisfied that the operator had the authority to issue this PCN.

If they had that authority, why wouldn’t they submit it, unless, of course, they don’t have it. And if they don’t have it, how many others have been caught out there and paid the penalty?

Time for a complaint and an investigation into this site by both the BPA and DVLA. Do please fire a complaint off and get the two agencies giving a similar dose of grief to ECP that they were happy enough to give to you in order to gouge £100 out of your pocket.

steve.c@britishparking.co.uk

david.dunford@dvla.gsi.gov.uk

granola

POPLA has messed up the on-line presentation of their adjudication on my appeal. On their web portal and below, they say I was unsuccessful. At the bottom of the supporting rational the assessor says the appeal has been allowed.

I queried it. POPLA’s Adele Brophy emailed back: “After looking at this I can see that your appeal has been allowed and the online website was amended.” She said she would post a copy of it.

The web portal has not been amended, neither has the narrative below when I looked at it a short time ago.

The appeal succeeded on the failure of the PPC to issue a compliant notice to keeper, which allowed the assessor to not consider the other points.

They are listed below. The principal CoP non-compliance was that there were no date and time stamps on the images on the NTK. The PPC also sent a redacted landowner authority contract, not the unredacted contract asked for.

PPC
Britannia Parking, DEX MSCP, Newcastle
Decision
Unsuccessful (actually, successful. See above and below)
Assessor Name
Gemma West
Assessor summary of operator case
The operator’s case is that the appellant failed to make a valid payment.
Assessor summary of your case
The appellant’s case is that the Notice to Keeper is not compliant. He says the operator has not complied with the British Parking Association Code of Practice. He explains that the signage is not prominent, clear or legible and lastly no evidence of landowner authority.
Assessor supporting rational for decision
The operator has provided photographic evidence of the terms and conditions, which state “£100 Parking Charge Notice may maybe issued to all vehicles which: Fail to purchase a valid ticket, voucher or permit”. The operator states it issued the Parking Charge Notice (PCN) as the appellant failed to make a valid payment. The Automatic Number Plate Recognition (ANPR) camera has captured the appellant’s vehicle entering site at 13:10 and exiting at 14:59, totalling a stay of one hours and 49 minutes. Within the appellant’s response, he states the Notice to Keeper is not compliant. As the appellant in this case has not been identified as the driver, I must consider if the operator has met the requirements of PoFA in its attempt to hold them, as the registered keeper, liable for the charge. The operator has provided a copy of the PCN issued to the appellant Schedule 4 of the PoFA, Paragraph 9 states: (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,”. In this instance, I can see the PCN 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”.

As a result, the Notice to Keeper does not state the correct timescale. Therefore the operator has not complied with the requirements of PoFA in attempting to transfer liability to the keeper, meaning the PCN has not been issued correctly.

I must allow the appeal. I note the appellant has raised additional grounds of appeal; however as I have allowed the appeal on the above basis, I have not considered them.

My thread: https://forums.moneysavingexpert.com/discussion/comment/73595538#Comment_73595538

parcaal

Just received my unsuccessful decision. My tread and case info can be found here:
https://forums.moneysavingexpert.com/discussion/5702728

DecisionUnsuccessful
Assessor Name
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) for remaining at the car park for longer than authorised or without authorisation.

Assessor summary of your case
The appellant states that the parking operator did not observe a grace period on site. They say that the operator does not have the authority to issue PCNs at the site and is not compliant with the British Parking Association (BPA) Code of Practice. Further the appellant says that the operator has not shown the individual it is pursing for the charge. In addition the appellant says that the Automatic Number Plate Recognition (ANPR) system is not reliable or accurate and that the time on site is not parking time. The appellant says that the signage at the site is not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge.

Assessor supporting rational for decision
The appellant states that the driver of the vehicle has not been identified, as such, liability cannot be transferred. 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. From the evidence provided, I am satisfied that the operator has met the minimum requirements of PoFA 2012, therefore the liability for the parking charge has been transferred from the driver of the vehicle to the keeper of the vehicle. The appellant’s vehicle registration, XXXX XXX, was captured entering the site at 19:44 and exiting at 20:15. The appellant remained at the site for a period of 30 minutes. The terms and conditions at the site state “20 Minutes Max Stay”. “Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The terms and conditions of the contract are outlined in the signage advertised at the car park. When assessing appeals we determine whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract offered. There are sufficient signs placed at the entrance and throughout displaying the terms and conditions offered. There is a helpline number on the signage to use if a motorist has any concerns about the site. The operator issued a PCN to the appellant for remaining at the car park for longer than authorised or without authorisation. The appellant states that the parking operator did not observe a grace period on site. They say that the operator does not have the authority to issue PCNs at the site and is not compliant with the British Parking Association (BPA) Code of Practice. Further the appellant says that the operator has not shown the individual it is pursing for the charge. In addition the appellant says that the Automatic Number Plate Recognition (ANPR) system is not reliable or accurate and that the time on site is not parking time. The appellant says that the signage at the site is not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge. Section 7.1 of the BPA Code of Practice states: “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 the authority to carry out all the aspects of car park management for the site that 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 this I have reviewed a copy of the witness statement provided by the operator. From this I can see that authority was given to cover a period between 13 June and 13 December, 2017. As the alleged contravention took place on 2 July, 2017 I am satisfied that the operator had the required authority to issue PCNs. Section 13.2 of the 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. 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. However, if a grace period is to be considered, the motorist must have utilised the period for its intended purpose and the motorist must only decide not to park, and take no other action, whilst at the site. Within their submission the appellant has not given any reason to support the reason for the delay in leaving the site. As such, I am not able to consider grace period as a valid ground for appeal. The appellant says that the signage at the site is unclear and not legible. 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 the BPA Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. 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. POFA 2012 defines “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. Therefore, 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. From the operator’s evidence I can see that it has met the minimum requirements set out within the BPA Code of Practice. Section 21.3 of the BPA Code of Practice states: “You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with”. ANPR cameras are used to capture images of vehicles when they enter and exit a site. This then calculates the length of the vehicle’s stay. Unless sufficient evidence can be given to dispute that a vehicle was not onsite for the recorded time, this is deemed a reliable way to monitor a vehicle’s stay. As such, photographs of a parked vehicle are not necessary. As the appellant has not rebutted the operator’s evidence I am unable to consider this point. 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, the appellant has failed to follow the terms and conditions offered as they remained parked beyond the maximum stay. If the appellant was is in disagreement with the terms and conditions offered or felt that the terms and conditions could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator. As such, I am satisfied the PCN has been issued correctly. Accordingly I must refuse this appeal.

Coupon-mad

ParkingEye seem to have POPLA in their pocket in some POPLA decisions.