POPLA Decisions

Pf23

Briefly, keeper appealing to POPLA against Britannia as NTK delivered late, did not clearly specify relevant land and images unclear and possibly manipulated. POPLA appeal unsuccessful but have complained as evident Assessor erred in law, did not consider relevant evidence, used irrelevant evidence and made unfounded statements about appellant. POPLA second attempt also flawed. Not giving up!

Decision
Unsuccessful

Assessor Name
Linda McMillan

Assessor summary of operator case
The operator has issued the charge as the appellant failed to make a valid payment.

Assessor summary of your case
• The appellant’s case is that he is not liable for the charge as the Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (PoFA 2012) as it was received outside of the “relevant period”.
• He states that the NTK does not state the “relevant land” on which the vehicle was allegedly parked.
• The appellant questions the authenticity of the images taken of the vehicle, in particular, the time stamps. He states that it is well within the realms of possibility for even an amateur to use free photo-editing software to overlay or amend number plates and/or any date stamps in the black boxes and text with authentic looking data. He states that only is this possible, but this practice has even been in use by other parking operators, who were banned by the DVLA after it emerged. The appellant has supplied several attachments and a document expanding on the above.

Assessor supporting rational for decision
The appellant’s case is that he is not liable for the charge as the Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (PoFA 2012) as it was received outside of the “relevant period”. Sub-paragraphs 4, 5 and 6 of Paragraph 9 of Schedule 4 of POFA 2012 state: “(4) The notice must be given by— (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. (5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. (6) 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.”

From the evidence provided by the appellant, I can see that the date of the contravention was 6 December 2017, as such, the relevant period starts on 7 December, and it must be received by 21 December. The appellant himself has confirmed that he received the document on 21 December. Therefore, I am satisfied that the notice was received within the given timescale.

He states that the NTK does not state the “relevant land” on which the vehicle was allegedly parked. Having examined the NTK and the signage on site, I am satisfied that the operator has complied with the relevant sections of PoFA 2012. It has also provided a copy of the authority it holds with the landowner. Section 7.1 of the British Parking Association’s 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 evidence of the contract it holds with the landowner. I am satisfied therefore, that the operator had sufficient authority on the date of the contravention. Furthermore, it is the view of POPLA that if authority had been removed, it is likely that the landowner would remove the signage at the same time. Not many landowners would look on quietly while someone operates on their land without their permission.

The appellant questions the authenticity of the images taken of the vehicle, in particular, the time stamps. He states that it is well within the realms of possibility for even an amateur to use free photo-editing software to overlay or amend number plates and/or any date stamps in the black boxes and text with authentic looking data. He states that only is this possible, but this practice has even been in use by other parking operators, who were banned by the DVLA after it emerged. POPLA accepts all evidence by both parties in good faith, to be correct unless proven otherwise. As I accept there is the possibility for inaccuracies, I am happy to accept any evidence that proves that the images have been altered by the operator. However, as the appellant has not provided evidence to demonstrate otherwise, I will work on the basis that the images are correct.

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. From the evidence provided by the operator, the terms and conditions state, “Pay on arrival. Restrictions and charges apply at all times to all vehicles” and “Please enter the full and correct vehicle registration into this payment machine when paying the tariff”. The motorist is also advised that failure to comply with the terms and conditions will result in a Parking Charge Notice (PCN) being issued for £100. The operator has supplied details showing the location of the signs throughout the site and as such I am satisfied that appellant had the opportunity to read and understand the terms and conditions before agreeing to the contract.

Ultimately, it is the motorist’s responsibility to read the signs and act in accordance with the terms and conditions applicable to the site. While I acknowledge the comments and documents the he has provided, by parking on site without purchasing parking time, the appellant has not complied with the terms of the site. Therefore, from the evidence provided, I conclude that the operator issued the PCN correctly.
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And POPLA's laughable response to my complaint about the above:

Your complaint about POPLA

Thank you for your email, which was passed to me by the POPLA team, as I am responsible for responding to complaints.

I note from your correspondence that you are unhappy with the decision POPLA has reached.

POPLA is an impartial and independent appeals service and we do not act for either the parking operator or the appellant. It is important to explain that it is not our remit to source evidence and documents from either party in support of their submission and our decisions are based on the evidence received from both parties at the time of the appeal. We cannot consider further evidence after the appeal has been completed.

I note that you believe the assessor has made an error in calculating whether the NTK was delivered to you within the relevant period. Having reviewed the case, I am satisfied the assessor has considered the information correctly in respect of this issue. In fact, I specifically note that the assessor has addressed the fact that you provided evidence to demonstrate the letter should have been delivered to you by 19 December 2017, which would have been within the relevant period. While I note you say you did not receive it until 21 December 2017, the operator must send it to be delivered within the relevant period, which it has done so as evidenced by yourself. It cannot be held responsible for any failings by the postal service.

Further to the above, you feel the assessor has failed to review the evidence you provided that the images from the operator had been digitally retouched or altered. Reviewing the assessors reasoning, again, I am satisfied her decision falls in line with POPLA’s processes. The evidence you provided is not sufficient to prove your claim.

You also believe the assessor has inappropriately referenced a ground of appeal you did not raise, as she refers to the signage within the report. When entering onto a private car park, the motorist forms a parking 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 parking contract. Therefore, the assessor must review the signage in order to determine that a parking contract was formed between motorist and operator. I am satisfied there is no error in the rationale by the assessor considering this when making a decision.

Finally, you state that the assessor has incorrectly referred to you as the driver when you have not made any admission or identification as to who the driver is. You have quoted the report where the assessor states, “I am satisfied that appellant had the opportunity to read and understand the terms and conditions before agreeing to the contract. Ultimately, it is the motorist’s responsibility to read the signs and act in accordance with the terms and conditions applicable to the site. While I acknowledge the comments and documents the he has provided, by parking on site without purchasing parking time, the appellant has not complied with the terms of the site”.

While I do note that this section of the report has been written incorrectly, I do not consider this would change the outcome reached. Ultimately, the facts are that the driver failed to comply with the terms and conditions of the car park. The operator has complied with PoFA 2012, and therefore the liability has been transferred to yourself as the registered keeper of the vehicle.

As such, POPLA is of the conclusion that the PCN has been issued correctly.

Please accept my apologies for the error in the wording used, and rest assured that in order to improve our service going forward, I have passed on feedback from your complaint to the assessor. Thank you for highlighting your concerns to us."

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Watch this space (for up to six years)!

Coupon-mad

the contravention was 6 December 2017, as such, the relevant period starts on 7 December, and it must be received by 21 December.

While I note you say you did not receive it until 21 December 2017, the operator must send it to be delivered within the relevant period, which it has done so as evidenced by yourself. It cannot be held responsible for any failings by the postal service.

Wow, what a surprise, POPLA get their dates and sums wrong again.

The NTK had to reach you by 20th December, not just be posted as if it 'might' and never mind the Christmas post.

They CANNOT say ''It cannot be held responsible for any failings by the postal service''. I am afraid the postal service is part of the calculation. OMG POPLA what the Heck are you on?!

Pf23

Part of my evidence was that, although the NTK is print dated 15 December, the envelope is franked 19 December and fortunately I had an independent witness who kindly supplied a statement that she was with me when Royal Mail delivered it on 21 December. Am completely baffled why Operator and two POPLA Assessors can't accept this....

Pf23

And the Operator sent it second class.....

Coupon-mad

They can't add up. Linda Mc actually said this and it's WRONG and she was not entitled to come to this conclusion:

The appellant himself has confirmed that he received the document on 21 December. Therefore, I am satisfied that the notice was received within the given timescale.

In fact, the relevant period begins with the day after the parking event, so that is 'DAY ONE'. You don't 'count on' adding 14 days to the day following the parking event, you count that day (7th December) too.

Therefore DAY 14 was 20th December, no ifs and no buts, she was wrong.

And the Operator sent it second class.....

I would have enclosed that envelope as evidence and NOT admitted you had it before Xmas. The relevant period assumes 2 working days for post sent 1st class, not second. I would have let POPLA assume it arrived even later.

Pf23

yes - I even submitted a scan of the envelope and referred to Royal Mails Operational Guidelines that franked mail only accepted on that date...

10_66

Original thread here.

Decision: Successful
Assessor name: LM

Assessor summary of operator case
The operator has not provided any evidence.

Assessor summary of your case
The appellant’s appeal is as follows: • The appellant states that a compliant Notice to Keeper was never served therefore no keeper liability can apply: • The appellant states that the operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge: • The appellant states that signs in this car park are not prominent, clear or legible from all parking spaces and there is inadequate notice of the contraventions: • The appellant states that there is no evidence of landowner authority, and the operator is put to strict proof of full compliance with the British Parking Association’s Code of Practice: • The appellant states that the parking ticket is not fit for purpose. The appellant has supplied an extensive document expanding on the above.

Assessor supporting rational for decision
It is the responsibility of the operator to provide POPLA with sufficient, clear evidence in order to rebut the appellant’s claims and prove that it issued the Parking Charge Notice (PCN) correctly. In this instance, I acknowledge the reason the PCN was issued, however I am not satisfied that the operator has adequately rebutted the appellant’s grounds for appeal to my satisfaction. I can only conclude that the PCN was issued 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 guess it's Corporate Services Parking Management as per your recent thread?

https://forums.moneysavingexpert.com/discussion/5800256

Well done :T

10_66

Umkomaas wrote: »

I guess it's Corporate Services Parking Management as per your recent thread?

https://forums.moneysavingexpert.com/discussion/5800256

Well done :T

Thank you Umkomaas. Yes, I put the link to my original thread in my earlier post (#3009).

bergkamp

One point appeal on landowner authority.

Decision Unsuccessful

Assessor Name Jamie Macrae

Assessor summary of operator case

The operator issued a Parking Charge Notice (PCN) to the appellant due to remaining at the car park for longer than the stay authorised or without authorisation.

Assessor summary of your case

The appellant has questioned whether the operator has authority from the landowner to operate on the land in question.

Assessor supporting rational for decision

The signage at the site states !!!8220;1 ½ hour max stay. Aldi Customers Only. For use only whilst shopping in store. Failure to comply with the terms and conditions will result in a Parking Charge of £70!!!8221;. Having reviewed the photographic evidence provided by the operator, I am satisfied there are sufficient signs placed at the entrance and throughout the site displaying the terms and conditions offered with a helpline number to use if a motorist needs assistance. The operator uses cameras to capture the registration number of cars entering and exiting the car park. I have checked the photographs, and I can see from the timestamp the vehicle was at the car park for two hours 57 minutes, which is one hour 27 minutes longer than permitted. The operator issued a PCN to the appellant due to remaining at the car park for longer than the stay authorised or without authorisation.

The appellant has questioned whether the operator has authority from the landowner to operate on the land in question.

As the driver is unknown, I must consider the Protection of Freedoms Act (PoFA) 2012. If a Parking Operator seeks to transfer liability to the registered keeper, it must ensure it does so in accordance with the requirements of PoFA 2012. Having reviewed the operators evidence, I am satisfied the provisions of PoFA 2012 have been complied with to transfer the liability to the registered keeper.
Within Section 7 of the British Parking Association (BPA) Code of Practice, it requires parking operators to have the written authority from the landowner to operate on the land. As such, I must consider whether the Operator has met the requirements of this section of the BPA Code of Practice.

The operator have provided a witness statement signed on behalf of the landowner confirming they have authority to operate on the land, due to this despite the appellant!!!8217;s comments I am satisfied the operator does indeed have authority to operate on the land in question.

It is the duty of the motorist to ensure that when they have entered a car park that they have understood the terms and conditions before deciding to park. On this occasion by remaining parked at the site the appellant accepted the terms and conditions. As they exceeded the maximum parking time allowed, they did not adhere to the terms and conditions. As such, I conclude that the operator issued the PCN correctly.

https://forums.moneysavingexpert.com/discussion/5827464