POPLA Decisions

Mackers12

Disappointing outcome from POPLA, which seems to have missed key evidence points I raised and goes against the grain of other POPLA decisions that I quoted in my appeal.

Ultimately, I overstayed during a storm, when exhausted - with visibility conditions FAR worse than they would have been at night when dry (genuinely didn't see sings). POPLA decision puts the duty on me(?) to prove how the signs looked during storm weather (even though I included about four news links as evidence, including a very nearby motorway slip road closed due to flooding). Previous decisions (rightly) put the duty on the operator to evidence how the signs look at the location / time of event, not here.

Also looks like ParkingEye don't have planning permission for the site (I checked the planning database), and are clearly in breach of MSA requirements (POPLA ignored this point, essentially saying it doesn't matter to them).

Also, ANPR cameras don't state what the data will be used for. I've found other POPLA decisions that held this appeal point in very similar circumstances, but this assessor think it's reasonable to assume that because there is a sign that states ANPR is used on site, and because there are car park tariffs - a driver should be able to put two and two together...

Will take further - if nothing else I'd rather take my case before a judge with common sense (even if he finds against me) than roll over to this corrupt and unfair system.

Decision: Unsuccessful

Assessor Name: XXXXXXXXXXXX

Assessor summary of operator case:

The operator has issued the Parking Charge Notice (PCN) because the appellant’s vehicle was parked on site for longer than the maximum time permitted and failed to make a payment.

Assessor summary of your case:

The appellant has raised the following grounds of appeal: • The signage does not comply with the British Parking Association (BPA) Code of Practice and was not prominent enough to form any contract with a driver. The signs fail to transparently warn drivers of what the ANPR data will be used for. • The weather conditions prohibited any contract to have been in place. • The parking operator lacks proprietary interest in the land and does not have the capacity to offer contract or to bring claim for trespass. • The vehicle images contained in the PCN are not compliant with the BPA Code of Practice and the Protection of Freedoms Act (PoFA) 2012. • The Automatic Number Plate Recognition (ANPR) System is unreliable and neither synchronised or accurate. • There is no evidence of planning permission from Shropshire Council for pole mounted ANPR cameras and no advertising consent for signage. • The signage is non-compliant with motorway service station requirements • There is a lack of genuine public interest. The appellant has provided a PDF document explaining their appeal as evidence to support their appeal.

Assessor supporting rational for decision:
In this case, it is not clear who the driver of the vehicle is; therefore I must consider the Protection of Freedoms Act 2012 (PoFA 2012), as the operator issued the Parking Charge Notice (PCN) to the Registered Keeper of the vehicle. The operator has provided a copy of the Notice to Keeper sent to the Registered Keeper. I have reviewed the Notice to Keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. As such, the registered keeper is liable for the charge. I will therefore be assessing the appellant’s appeal as the keeper of the vehicle. The operator has issued the Parking Charge Notice (PCN) because the appellant’s vehicle was parked on site for longer than the maximum time permitted and failed to make a payment. The operator has provided images of its signage including a site map which states: ”2 Hours free parking”,”Parking Tariffs Cars 2-24 hours £15”,”Tariffs include the first 2hours free parking, Please pay for parking at WH Smith”, and ”Failure to comply with the terms & conditions will result in a Parking charge of £100”. Further the operator has provided photographs showing the appellant’s vehicle entering the car park at 13:54 and exiting at 17:06 totalling a stay of three hours and 12 minutes on the day of the incident. The operator maintains a list of vehicles which have made payment on the day against individual vehicle registration details . In this evidence it has demonstrated that no payment had been made for the vehicle on the day of the incident. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests that the terms have been breached. I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice.

• The appellant states that signage does not comply with the British Parking Association (BPA) Code of Practice, was not prominent enough to form any contract with a driver and the signs fail to transparently warn drivers of what the ANPR data will be used for. They states that the signage is non-compliant with motorway service station requirements I note the appellant’s comments however, the operator has provided photographic evidence of the signage on site. From the evidence provided, including the site map I can see that there is signage located all around the site informing motorists of the terms and conditions. Given this, I must consider the signage in place at this location to see if it was sufficient to bring the terms and conditions to the attention of the driver when entering and parking at the location.

Within Section 18.1 of the British Parking Association (BPA) Code of Practice it states that “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” In addition to this, Section 18.2 of the BPA Code of Practice states that “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.” Having considered the evidence provided, I am satisfied that the operator had installed a suitable entrance sign at this location and this was sufficient to make motorists aware that the parking is managed on this particular piece of land.

Furthermore, within Section 18.3 of the BPA Code of Practice, it states that: “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.” Having considered the signage in place, I am satisfied that the operator has installed a number of signs throughout the car park and these are sufficient to bring the specific terms and conditions to the motorists’ attention. In my view, these are “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.”

I can also see from the photographic evidence of the signage that there is an ANPR icon on every sign and the signage advises motorist’s that the car park is monitored by the ANPR cameras. While the signage at the site may not state that the cameras are used to record the entry and exit time of the vehicle, it does advise that parking tariffs are applicable 24 hours a day. As such, it is reasonable to expect that motorists would be aware that tariffs are applicable at the site starting after the initial free two hours from when the vehicle enters to when it exits. Therefore, I am satisfied that the signage complies with Section 21.1 of the BPA Code of Practice which states “Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for”

The appellant states that the weather conditions prohibited any contract to have been in place. I note the appellant’s evidence however, the evidence the appellant has provided does not demonstrate the that the signage was not visible on the specific site on the day of incident. As the appellant arrived during the hours of daylight and after reviewing the operator’s evidence of the signage, I am satisfied that the signage would have been visible to motorists.

The appellant states that the parking operator lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring claim for trespass. Section 7.1 of the British Parking Association (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 Code of Practice and that you have the authority to pursue outstanding parking charges”. In response to this ground of appeal, the operator has provided a statutory declaration, confirming that the operator has sufficient authority to pursue charges on the land.

The appellant states that the vehicle images contained in the PCN are not compliant with the BPA Code of Practice and the Protection of Freedoms Act (PoFA) 2012 and the Automatic Number Plate Recognition (ANPR) System is unreliable and neither synchronised or accurate. The parking operator has provided evidence from the ANPR system that the motorist’s vehicle had entered the site on the day in question. I am satisfied that the operator’s evidence proves the case it is claiming. In this instance the appellant has not provided any evidence to refute the operator’s claim. The site operates Automatic Number Plate Recognition (ANPR) cameras, which capture vehicles entering and exiting the site to calculate the time a vehicle has remained in the car park. This data captured is then compared with the online transaction record, and therefore if no payment can be located for the correct vehicle registration, a PCN is issued. The operator has provided evidence of the system record of registered vehicles. This record shows the images captured by the ANPR cameras of vehicles entering and exiting the car park, and provides a time and date for this, to calculate the total stay a vehicle may remain in the car park.

The operator has provided evidence of a search made for the appellant’s vehicle, using the appellant’s registration. This confirms that only two entries have been recorded for the vehicle, once entering, and once exiting. Independent research from the Home Office and Asset Skills has found that ANPR technology is generally reliable. However, POPLA will on occasion, receive appeals from motorists who claim there has been an error with the ANPR. When considering such appeals, POPLA must consider if there is any evidence to cast doubt on the ANPR’s accuracy. This can come from either the appellant or be included as part of the parking operator’s evidence pack. The burden of proof begins with the operator to show it issued the PCN correctly. If they do that by providing ANPR images that support its version of events, the burden of proof then passes to the appellant. If the appellant provides a version of events or evidence that then casts doubt on the legitimacy of the ANPR technology, it is then up to the POPLA assessor’s judgement as to whether this is sufficient to show the technology was not working. Evidence of inaccuracy can come in a number of forms, including the appellant’s explanation of events. But physical evidence, such as a receipt to show the appellant was elsewhere, will often be more persuasive.

The appellant states that there is no evidence of planning permission from Shropshire Council for pole mounted ANPR cameras and no advertising consent for signage and the signage is non-compliant with motorway service station requirements When looking at appeals, POPLA considers whether a parking contract was formed between the motorist and the operator and, if so, whether the motorist kept to the conditions of the contract. As this issue holds no impact on the appellant’s ability to comply with the terms on the date of the parking event, I cannot consider it relevant to the assessment. Should the appellant wish to pursue any dispute regarding this matter, they would need to contact the relevant planning authority directly.

The appellant states there is a lack of genuine public interest. I note the appellant’s comments , however the signage on the site does not prohibit motorists from stopping or staying on the site for longer than two hours. The signage advises that in the event a motorist finds themselves in a situation where they need to stay for longer than the maximum free stay , payment is required. Fundamentally, it is the motorist’s responsibility to check for any terms and conditions, and either adhere to them or choose to leave. The appellant chose to stay, therefore accepting the terms and the parking charge that the operator has subsequently sent to them.

After considering the evidence from both parties , the appellant’s vehicle was parked on site for longer than the maximum time permitted and failed to make a payment and therefore did not comply with the terms and conditions of the site. I am satisfied that parking charge notice has been issued correctly. Therefore this appeal must be refused.

beamerguy

Will take further - if nothing else I'd rather take my case before a judge with common sense (even if he finds against me) than roll over to this corrupt and unfair system.


Shame but not the end of the world.

Most judges have more sense than POPLA and it sounds like you got the early morning tea boy as a POPLA assessor

Do remember that PE is one of the BPA's favourite boys so there is a clue.

When PE start with their threat-o-grams come back here

Umkomaas

In response to this ground of appeal, the operator has provided a statutory declaration, confirming that the operator has sufficient authority to pursue charges on the land.

What do they mean by 'a statutory declaration'. What is a statutory declaration? Did you get a copy of this document @OP?

Mackers12

Hi Umkomaas,

They provided the usual generic witness statement waffle, signed by a 'parking administrator' based in Milton Keynes (~100 miles from where the event took place) and with a stated job title curiously very different than his LinkedIn suggests...

Not sure why POPLA referred to it here as a 'statutory declaration', perhaps they took offense to my challenging the credibility of their pals witness statement.

waamo

POPLA seem to be making some very dubious decisions recently. I think this one warrants a complaint to the chief adjudicator.

Mackers12

I think I will Waamo, and any suggestions welcome!

I've spent some time trying to find similar cases to complain about inconsistency to email John Gallagher directly (and the ISPA) - and although I can find a lot of examples of blatant inconsistency, I'm struggling with finding ones that have the POPLA ref number that I can quote, so they may verify the accuracy of my complaint. On the ANPR point in particular, I've found a case where Lauren Bailey states (albeit in 2016), while I note that it advises that the “car park monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras for”, as required under Section 21.1 of the BPA Code of Practice."

This is the exact wording of the sign in my case, yet POPLA have taken the polar opposite viewpoint. Found similar blatant inconsistencies with the validity of generic witness statement that doesn't define the land, but again no Popla reference to verify.


I'll email regardless in the interest of raising this as an issue, but suspect it will fall on deaf ears and I may just get on with my defense... *sighs*

Umkomaas

I've spent some time trying to find similar cases to complain about inconsistency to email John Gallagher directly (and the ISPA)

ISPA have gone. They were fed up and frustrated by the way the BPA mishandled the transfer of the POPLA service provided by London Councils (using legally qualified assessors) to the POPLA service now provided by the Onbudsman Service (using former nail technicians, call centre staff and budding soft !!!!!! authors), and in particular in the appointment of Wright Hassall (WH) solicitors to fill in the gap during the transfer (affectionately remembered as WHOPLA!).

A shambolic mess! ISPA was providing some reasonable moderation in the system, but the BPA eventually saw them off, leaving us where we are today. Still, it could be a lot worse - IAS!

beamerguy

The POPLA service now provided by the Onbudsman Service (using former nail technicians, call centre staff and budding soft !!!!!! authors),

Like it Ukm .... sums up POPLA like a drowned out tea bag

The ISPA got too close to the truth about the BPA so they had to go, let alone there was no money left in the BPA pot ?

The BPA has failed and has ended up as a scammers organisation

Mackers12

Any experience with emailing the current Lead Adjudicator John Gallagher? If I did raise a complaint and comment on clear inconsistencies and procedural failings - is he even likely to read it let alone reconsider the decision?

Umkomaas

Mackers12 wrote: »

Any experience with emailing the current Lead Adjudicator John Gallagher? If I did raise a complaint and comment on clear inconsistencies and procedural failings - is he even likely to read it let alone reconsider the decision?

There have been complaints in the past, some successful, some not. But, you'll never know unless you try.

You really have to lay it on thick that this decision is a misrepresentation of the law, which is only 6 years old, and has serious consequences for the individual now being put in danger of litigation as a result of an assessor who seems to be just guessing at the law, maybe to overcome an inability to understand (or even attempt to understand) it.

Where was the line management support to guide this hapless and floundering assessor, where are the quality assurance checks surely incumbent on an impartial and independent ADR service to deliver?