POPLA Decisions

Umkomaas

Well done you @PaB. :T. Here's a link to your original thread.

https://forums.moneysavingexpert.com/discussion/5953571/adding-to-the-newbies-template-apcoa

TheNorthernLights

Decision
Successful Unsuccessful
Assessor Name


Assessor summary of operator case
In this case the operator has issued a Parking Charge Notice (PCN) of £100 for failure to complete a valid transaction for the parking period. (NOTE: I had a valid ticket for an incorrectly entered registration)
Assessor summary of your case
The appellant has informed POPLA that they were not the driver of the vehicle. However, when appealing the charge to the operator directly they have written in the first person and confirmed they were in fact the motorist at the time of the contravention. As such I am assessing the charge under driver liability. The appellant has challenged the appeal under the Protection of Freedoms Act 2012. They have also stated that they believe the operator has no proprietary interest in the land and cannot enter into a contract with drivers at the site. The appellant also states that the signage is inadequate, and the charge is extravagant and disproportionate to the contravention.

Assessor supporting rational for decision
POPLAs remit is to assess whether a PCN has been issued correctly, in accordance with the terms and conditions of parking displayed on the signage at a site. When assessing a charge the burden of proof initially lies with the operator. It must provide evidence of the terms and conditions of the parking site, how the driver was made aware of the specific parking conditions, how the terms of the parking contract were breached, and how the appellant was made aware of the charge. Once it has satisfied the burden of proof, it then passes to the appellant to show any inaccuracy in the operator’s case file. In this case the operator has issued a PCN of £100 for failure to complete a valid transaction for the parking period.


The appellant has informed POPLA that they were not the driver of the vehicle. However, when appealing the charge to the operator directly they have written in the first person and confirmed they were in fact the motorist at the time of the contravention. As such I am assessing the charge under driver liability.


The appellant has challenged the appeal under the Protection of Freedoms Act 2012. They have also stated that they believe the operator has no proprietary interest in the land and cannot enter into a contract with drivers at the site. The appellant also states that the signage is inadequate, and the charge is extravagant and disproportionate to the contravention. The operator has provided transaction logs and automatic number plate recognition images which show that the vehicle remained without authorisation between 10 September 2018 at XX:XX and 11 September 2018 at XX:XX. The terms and conditions of the site are: “A Parking Charge Notice (PCN) will be issued for failure to comply with the terms and conditions…. Failure to pay all charges due for your parking… PCN charges paid after 14 days £100…” I note the appellant has challenged the appeal under the Protection of Freedoms Act (POFA) 2012. POFA 2012 details the required process that an operator must follow to hold a registered keeper liable for the charge. As the appellant confirmed they were the motorist the operator is not required to comply with POFA 2012 as such this is not a sufficient reason to allow the appeal. In regard to the point made regarding statutory control, Section 3.1(c) of POFA 2012 does state that a site is not admissible where parking a vehicle is subject to statutory control. However, Section 3.3 states; “For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.” As there are no statutory provisions in place at this site which impose liability for a charge these comments have no bearing on my assessment of the charge.


The appellant has challenged the operators’ proprietary interest in the land and challenged the appeal under Section 7 of the British Parking Association (BPA) Code of Practice, they have also stated that the evidence given does not allow the operator to issue a charge under byelaws. I must advise the appellant that this PCN has not been issued under a byelaw and as the operator has provided a witness statement compliant with Section 22.16b of the BPA Code of Practice I am satisfied that it has sufficiently evidenced that it is authorised to issue and pursue a PCN for breach of terms at this site.


The appellant has challenged the adequacy of the signage. They have referred to Appendix B for entrance signs however they have also confirmed that these signs are viewable by a driver entering the site as such I do not consider the entrance signs had any impact on the appellants ability to comply with the terms and conditions. Likewise, in regard to their reference of the telephone payment option, the appellant paid at a terminal on site as such the lack of telephone payment information did not impact their ability to comply with the terms and conditions. Section 18.3 of the BPA Code of Practice states: “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.”


The appellant has advised that the use of the word ‘may’ is ambiguous, however I disagree as the contravention types and resultant PCN are clearly displayed. The appellant was given sufficient opportunity to review the terms and conditions and the consequences of failing to comply were clearly displayed. The appellant has referred to signage in the dark and contrast of the information on the signage and implicated that this may prevent drivers from complying with the terms and conditions.


However, the fact remains that the appellant made a payment and attempted to comply with the terms displayed, as such I find that the issues described have not prevented the appellant from considering the terms and entering into a contract with the operator. The appellant states the requirement to pay £100 for a breach of terms is not prominently displayed and is alleging that the charge is a penalty rather than a genuine pre-estimate of loss and therefore cannot be legally enforced. The same ground of appeal was brought before the Supreme Court in the ParkingEye-v-Beavis case. The Supreme Court dismissed the appeal and, in doing so explained and updated the law on penalties. In its reappraisal of the doctrine the Supreme Court has made it looser and effectively abolished the dichotomy between penalty and genuine pre-estimate of loss that Beavis relied on. Critically, the court explained that the concept of a penalty and a pre-estimate of loss were not mutually exclusive. The fact that the clause is not a genuine pre-estimate of loss does not therefore mean that it is penal. The new principles explained by the Supreme Court mean that it is no longer possible for contract breakers to argue that a secondary charge payable upon breach of agreement is a penalty and unenforceable simply because it is not a genuine pre-estimate of loss. The Supreme Court found that the landowner and operator had a legitimate and commercial interest in the efficient management of the land in question and the generation of a viable income that would allow it to continue to manage the site. I am satisfied that the legitimate interest of both parties remains the same and the PCN issued for a breach of terms is supported by the ParkingEye-V-Beavis case. Furthermore, I have assessed the signage and find it to be clear and legible with adequate detail regarding the value of the charge. The operator has also complied with Section 19.5 of the British Parking Association Code of Practice, which states: “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.”


The appellant has failed to address the contravention reason and has given no indication that they believe the terms and conditions were not breached. The operator has highlighted a transaction based off the appellant original appeal to it, however as I have not been given any proof of payment to show that the vehicle was authorised to park, I am not satisfied that the appellant has shown the recorded payment was made by them incorrectly. As such, I refuse the appeal as I find that the PCN is not an unfair charge and has been issued correctly.




NOTE**** I do not recall stating that I was not the driver in my appeal, however, if I did, or if I missed that in my check prior to my submission, then it is my own stupid fault. However, I paid £25 to park, their machine issued a ticket for a reg which was incorrect. If I had been prompted to enter a correct address, as was suggested in their evidence, I would have corrected it. I would not have manually overridden any prompts informing me that my reg was wrong.

The proof of the payment with incorrect reg is in the evidence pack submitted by NCP. NCP show a payment made for the incorrect reg with no 'Sighting ID' (assumed based on ANPR).

beamerguy

WHO is the parking company ?

I did not read it all, just skimmed it because it's a wall of text.
PLEASE paragraph it.

POPLA is now an old dinosaur who will shortly be put out to grass with the other old nags because government will be introducing their own assessor service

Now you just wait to see what the PPC will do and then come back here.

If it does go to court (maybe) then what did the PPC do with the £25 you paid ...... could they be operating a fraud ????

TheNorthernLights

Beamerguy,

Parking company is NCP. Apologies for the lack of paragraphs, I copied and pasted it before starting work, I'll go back and edit at lunch.


As you said in my other post, hopefully De Minimis will apply, seeing as I paid to park and they have no suffered no loss of income.

Shady_Tree

Premier Park Ltd unsuccessful POPLA appeal. Hope the format's OK - I've paragraphed and didn't think it was too long. If anything, quite a brief response from POPLA after reading others on here!

Decision
Unsuccessful
Assessor Name

Assessor summary of operator case
The operator’s case is that the appellant exceeded the maximum stay period.

Assessor summary of your case
The appellant’s case is that he was shopping at the site that day and was unaware of the parking restrictions. He states that the entrance sign was damaged and does not contain enough information. He states that the size of the text is small. The appellant has made reference to Appendix B of the British Parking Association (BPA) Code of Practice. The appellant has provided photographs of the entrance sign to support his appeal.

Assessor supporting rational for decision
The appellant has identified himself as the driver of the vehicle on the day of the parking event, and therefore, I am considering the appellant’s liability for the Parking Charge Notice (PCN). 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. The terms and conditions of the site state: “Maximum stay 75 minutes. No return within 75 minutes. If you enter or park on this land contravening the terms and conditions displayed, you are agreeing to pay: PCN £100”. The operator has issued the PCN as the appellant exceeded the maximum parking time permitted. 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 14:56 and exited at 17:00 on the day in question, staying for a total of 124 minutes. The appellant’s case is that he was shopping at the site that day and was unaware of the parking restrictions. He states that the entrance sign was damaged and does not contain enough information. He states that the size of the text is small. The appellant has made reference to Appendix B of the BPA Code of Practice. The purpose of the entrance sign is solely to advise motorists that there are parking restrictions displayed inside the site that they should be aware of. In this instance, I can see that the appellant has provided evidence that there has been damaged to the one at this specific site. However, the operator has provided photographic evidence of the signage displayed throughout the site.

Upon review of this, I am satisfied that the signage is sufficient to bring the site’s terms and conditions to the attention of motorists and consider that the appellant was presented with a reasonable opportunity to review them before deciding whether to park. In summary, I do not consider that the fact that the entrance sign was damaged, or the size of the font would have prevented the appellant from reviewing and complying with the terms and conditions. Furthermore, I can see that the appellant has disputed that the signs were not illuminated, however it was daytime when he parked. Therefore, it is not necessary to address this. Ultimately, it is a motorist’s responsibility to ensure they adhere to the terms and conditions of a site when parking on it. As the appellant exceeded the maximum parking time permitted, he has failed to comply. As such, I conclude that the PCN was issued correctly. Accordingly, I must refuse this appeal.

Umkomaas

You know that you are under no obligation to pay after an unsuccessful POPLA appeal, unless a Judge ultimately instructs you to pay.

That said, from what you've appealed on to POPLA, your defence would need to be much stronger.

Have you complained to the landowner/retailer (or whoever's car park you were parked at)?

Shady_Tree

Hi Umkomaas,

Thanks for your reply. I have complained to the landowner and they are investigating. I complained to the BPA too about the entrance sign and no Group 1 wording and they replied say that Premier Park had an exemption agreed with their senior management of which the "information is not available in the public domain" Does this sound right to you or anyone else? all other car parks in the area have Group 1 wording.

I've also written to my MP who's constituency covers this car park

henrik777

Shady_Tree wrote: »

Hi Umkomaas,

Thanks for your reply. I have complained to the landowner and they are investigating. I complained to the BPA too about the entrance sign and no Group 1 wording and they replied say that Premier Park had an exemption agreed with their senior management of which the "information is not available in the public domain" Does this sound right to you or anyone else? all other car parks in the area have Group 1 wording.

I've also written to my MP who's constituency covers this car park

That is unbelievable !

Umkomaas

Shady_Tree wrote: »

Hi Umkomaas,

Thanks for your reply. I have complained to the landowner and they are investigating. I complained to the BPA too about the entrance sign and no Group 1 wording and they replied say that Premier Park had an exemption agreed with their senior management of which the "information is not available in the public domain" Does this sound right to you or anyone else? all other car parks in the area have Group 1 wording.

I've also written to my MP who's constituency covers this car park

Report this to the DVLA on the basis that they are not complying with the BPA Code of Practice and are therefore breaching their KADOE contract with the DVLA. Ask them to investigate.

ccrt@dvla.gov.uk

There are no easy answers to any of the smoke and mirrors put in the way of motorists trying to find a way through this stuff. So my suggestion isn't a silver bullet solution, but unless this is exposed at as many levels as possible, the PPCs will take more and more liberties, to the detriment of the motorist, aided and abetted by their 'regulatory body' (the BPA) - stop laughing at the back!

MistyZ

POPLA Appeal Successful - hire car, Rheidol Retail Park, Aberystwyth (Parking Eye):

The assessor has considered the evidence provided by both parties and has determined that the appeal be Allowed 

The reasons for the assessor's determination are as follows:

Assessor summary of operator's 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. 

Assessor summary of appellant's case:

 The appellant has raised the following grounds of appeal:
• They state that the operator has not shown that the individual it is pursuing is the driver and the PCN is not compliant with the Protection of Freedoms Act (PoFA) 2012.
• They state that the operator has no standing or authority to pursue charges or to form contracts with drivers using the car park.
• They state that the charge is a penalty and breaches Consumer Rights Act 2015 and is prohibited under the CPUTRs.

The appellant has provided a letter detailing their appeal. 

Assessor summary of reasons:

 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.
The operator has provided copies of its signage including a site map which states:”2 Hour max stay”,”Customer only car park”,”Failure to comply with the terms & conditions will result in a Parking charge of £100”. Further the operator has provided evidence of the appellant’s vehicle entering the site at 11:58 and exiting at 14:31 totalling a stay of two hours and 33 minutes on the day of the incident.

In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly.
The appellant states that the operator has not shown that the individual it is pursuing is the driver and the PCN is not compliant with the Protection of Freedoms Act (PoFA) 2012.
Under Schedule 4 of the Protection of Freedoms Act 2012 (PoFA 2012), it states that liability for unpaid parking charges can be transferred from the registered keeper to the registered hirer if “the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper”.
The operator has failed to provide a copy of these documents in its evidence to POPLA. As a result, I cannot confirm that PoFA 2012 has been complied with.
After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified.
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.
As such, I conclude that the PCN has been issued incorrectly. 

Kind regards


POPLA Team