POPLA Decisions

kml

Link to original thread: forums.moneysavingexpert.com/showthread.php?t=6017638

PPC: Initial Parking

Decision: Unsuccessful

Assessor Name: Ashlea Forshaw

Assessor summary of operator case:
The parking operator has issued a Parking Charge Notice (PCN) to the motorist for, unpaid tariff time.

Assessor summary of your case:
The appellant has provided a document which outlines their grounds for appeal. The grounds are as follows: • Notice to Keeper is non compliant with PoFA 2012. • Grace period was non compliant with BPA Code of Practice. • The operator has not shown that the individual who it is pursuing is in fact the driver. • No evidence of landowner authority. • No evidence of period parked, NTK does not meet PoFA 2012. • Vehicle images on the PCN are non compliant with BPA Code of Practice. • The ANPR system is non reliable nor accurate. • No planning permission from Cornwall council for pole mounted ANPR camera and no advertising consent for signage.

Assessor supporting rational for decision:
On this occasion, the driver of the vehicle has not been identified. Therefore, I will be assessing keeper’s liability in this case. For the operator to transfer liability from the driver to the registered keeper of the vehicle, the operator must have issued a notice to keeper using the Protection of Freedoms Act (PoFA) 2012 and must comply with schedule 4 paragraph 9. This section of PoFA states the following: A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (2)The notice must— (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, 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; Having looked at the notice to keeper provided within the operator’s case file, I am satisfied that the document has met the requirements of PoFA 2012. Therefore, the keeper can now be held liable for any unpaid parking charges. I will now look at the terms and conditions of the site. The terms and conditions of this site state, “Parking Tariffs Apply, 2-3 hours £5.00… failure to comply with the terms & conditions may result in a parking charge notice of £100.00”. The operator has issued a PCN to the motorist for, unpaid tariff time. The operator has provided copies of its signage displayed at the site, along with a site map. Further, the operator has provided still camera images taken by the Automatic Number Plate Recognition (ANPR) Systems. The images show the appellant entering the site at 15:25 and exiting at 17:48, totalling a stay of two hours and 22 minutes. The operator has provided a report which shows that the appellant’s vehicle, LL10 CGX, was registered against a two hour payment that day. The appellant however overstayed this period by 22 minutes and did not make an additional payment. 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 the terms have not been met. 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 has raised more than one ground for appeal. I will be addressing each ground separately. • Notice to Keeper is non compliant with PoFA 2012. The appellant says that the notice was not provided within the 14 days as it arrived on the 15th day. I have reviewed the notice to keeper and I am satisfied that this was issued within the 14 working days. If the appellant received this late, this is an issue she will need to raise with the postal service, this is no fault with the operator. • Grace period was non compliant with BPA Code of Practice. The appellant has raised two separate grace periods, one at the beginning of the contract and one at the end of the contract. The appellant has said that there was a queue when entering the site, she had to find a space, park her vehicle, download the parking app and then pay for parking. She says that this had taken her 6-7 minutes to do so. I agree that motorists are given a reasonable period to enter a car park, review the terms and to decide if they wish to stay or go. On this occasion, the appellant parked and purchased a ticket within 7 minutes of entering. I consider this to fall in line with a grace period. I will now look at grace periods when leaving the site. Section 13.4 of the BPA Code of Practice states, “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. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes”. The appellant’s ticket expired at 17:32. The appellant did not exit the site until 17:48. This is 16 minutes after the ticket expired. I note that the appellant has said that there is a long distance from the bottom of the car park to the exit and that there were slow queues to exit due to school holiday congestion however, there is no clear evidence to me that there was congestion and therefore, I cannot consider 16 minutes to leave the site to fall within a reasonable period. I am satisfied that 16 minutes to leave the site exceeded a grace period. • The operator has not shown that the individual who it is pursuing is in fact the driver. Whilst I appreciate the appellant’s comments, I have already considered PoFA 2012 at the beginning of my report. It was stated that PoFA 2012 had been met and therefore, I will not comment on this ground of appeal any further. • No evidence of landowner authority. Section 7 sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the land owner (or their appointed agent) … 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 the contract. Having reviewed this against section 7, I am satisfied that the document has met the requirements laid out in the BPA Code of Practice. • No evidence of period parked, NTK does not meet PoFA 2012. Whilst I appreciate the appellant’s comments, the ANPR images have shown the times the appellant entered and exited. It is the appellant’s responsibility to ensure that they pay for the full duration of their stay. A grace period at the start and at the end of the contract has been given however it is found that the appellant overstayed a grace period when leaving the site. The appellant did not make sufficient payment for her stay. I am satisfied that the ANPR images show how long the appellant remained on site. It is irrelevant how long the appellant was parked. The fact is she remained on site and therefore, was under a contract with the parking operator. • Vehicle images on the PCN are non compliant with BPA Code of Practice. The appellant has raised section 20.5a of the BPA Code of Practice which states the following: “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”. The appellant says that the images of her vehicle are not date or time stamped on the photograph nor do they clearly identify the vehicle entering and exiting the site. Having reviewed the close-up images of the appellant entering and exiting this site, I am satisfied that the images are date and time stamped. This is clear to see within the evidence pack on pages 1 and 2. Therefore, I disagree with the appellant’s comments that they are not clear. • The ANPR system is non reliable nor accurate. Section 21.1 of the BPA Code of Practice states: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. 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 BPA audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate. Independent research has found that the technology is accurate. The appellant has not provided me with any evidence to disprove that the ANPR cameras were not working on the date of the event, as such I consider that they were fully accurate. • No planning permission from Cornwall council for pole mounted ANPR camera and no advertising consent for signage. If the appellant would like to see a copy of planning permission, they would need to contact the local council. This is not information POPLA would obtain. The fact remains that the operator has provided a contract which proves that permission has been given for the operator to operate on this land. Therefore, permission will have been granted for the signage to be put in place. The appellant has also provided additional comments to POPLA after reviewing the operator’s case file. The appellant has expanded upon her original grounds for appeal however, I do not feel that the comments require any further response as I have addressed the issues within my report. Ultimately, the appellant has parked on site for an additional 16 minutes without making a payment to cover this period. Therefore, breaching the terms of the car park. Based on this I am satisfied that the PCN has been issued correctly and so, I must refuse this appeal.

Umkomaas

The appellant says that the notice was not provided within the 14 days as it arrived on the 15th day. I have reviewed the notice to keeper and I am satisfied that this was issued within the 14 working days. If the appellant received this late, this is an issue she will need to raise with the postal service, this is no fault with the operator.

This is BS and POPLA should be ashamed that its assessors are not understanding the wording of PoFA.

This is nothing to do with the postal service, the error rests with the PPC who issued the NtK on day 13, in the full knowledge (or at least they should know if they want to do their job properly) that it could not be deemed delivered within strict time limits of PoFA requirements in which to hold the keeper liable.

As such this is a procedural error and you should complain to the Lead Assessor, John Gallagher, that this has resulted in an incorrect decision being reached. Under no circumstances can the keeper be held liable, this is an error in law and the assessor should be informed, retrained and her decision overturned.

You will need to itemise each date with their appropriate day number against them and with the relevant paras of PoFA added too. Unfortunately, this Janet and John approach is still required in order to walk POPLA through the detail without them needing to engage too many brain cells.

Miscarriage of justice!

beamerguy

Umkomaas wrote: »

As such this is a procedural error and you should complain to the Lead Assessor, John Gallagher, that this has resulted in an incorrect decision being reached. Under no circumstances can the keeper be held liable, this is an error in law and the assessor should be informed, retrained and her decision overturned.

OMG, one of John Gallagher's tea girls

Welcome the day when POPLA are declared a DODO

Coupon-mad

''14 working days'' eh? POPLA need a virtual slap in the form of a complaint.

G_star_girl

Thanks so much to those who helped and input into my response. Here's a summary of my case and it can be found under the post name 'Wye Valley Visitor Centre Parking Eye - Broken parking machine':

I received a PCN for overstaying a paid ticket by 23 minutes at the butterfly zoo due to ANPR cameras clocking your entry time rather than the time shown on the pay and display ticket.
I left the car park before the paid 4 hours was up on my pay and display ticket however the reason for the overstay in addition to a usual grace period of getting out/in the car, unloading etc. was that the parking machine was being fixed by a parking attendant therefore I could not purchase a ticket. The parking attendant advised me that I could pay afterwards but you receive money off entry to the visitor attraction so I waited with other customers for this to be fixed. Not at any time did he advise to add additional time on as they use entry time not pay and display ticker time. I put all of this info into the initial appeal to ParkingEye however they rejected this by just stating that insufficient payment had been made and did not address the issue of the parking meter being unusable.

Decision Successful
Assessor Name XXXXXXXXX

Assessor summary of operator case
In this case the operator has not submitted any evidence within the 21 days allowed, to show why it issued a Parking Charge Notice (PCN) to the appellant.

Assessor summary of your case
I note the appellant has submitted grounds of appeal. However, as the operator has not given evidence within the time frame allowed, I do not need to consider the appellants’ submitted information in order to reach a decision about this appeal.

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. As the operator has not submitted a case file or evidence within the 21 day period allowed, I am unable to assess the validity of the charge. I note the appellant has submitted their reasons of appeal, however I have no need to consider this information. I cannot assess the validity of the charge and therefore I consider it was issued incorrectly and allow this appeal.

beamerguy

G_star_girl ... good news.

Parking Eye failed to submit a case file ????

They knew they were scamming you then.

They are a BPA member after all ?

the_franchise

PPC: Smart Parking

Decision Unsuccessful

Assessor Name Jamie Macrae

Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) to the appellant due to either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.

Assessor summary of your case
The appellant states they paid for two hours parking using Ringgo. The appellant says it was cheap so they had no reason not to pay. The appellant says they paid for more time that they parked.

Assessor supporting rational for decision
I am satisfied that the appellant is the driver and as such, will be considering their liability for the PCN. The signage at the site states: “Parking Tariffs Apply. Per hour £1.10… Motorists must enter their full, correct vehicle registration details when using the payment machine… Failure to comply with the terms and conditions may result in a Parking Charge of £100.00…”. 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 appellant was at the car park for one hour 59 minutes. 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 issued a PCN to the appellant due to either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted. The appellant states they paid for two hours parking using Ringgo. The appellant says it was cheap so they had no reason not to pay. The appellant says they paid for more time that they parked. The appellant has stated they paid for two hours parking; however, the appellant has failed to provide any evidence to support this. Therefore, I can only base my decision on the evidence provided to me by the operator. The operator has provided a system print out, which shows that a payment for one hour was made. I do not dispute the appellant made a payment; however, insufficient time was purchased to cover the duration of their stay. It is the duty of the appellant 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 did not purchase sufficient parking time, they did not adhere to the terms and conditions. As such, I conclude that the operator issued the PCN correctly.

***

I'm just going to pay it now. I know I'm being scammed but whatever

Umkomaas

I'm just going to pay it now. I know I'm being scammed but whatever

You are not obliged to pay this. Only a Judge can order you to pay. Smart Parking don't do court (at time of writing) despite issuing around three quarter of a million tickets a year.

Read the NEWBIES FAQ sticky, post #4 about debt collectors which is the only further action Smart are likely to take. Don't act in haste!

parcaal

Thank you all for the advice so far. My POPLA appeal was successful. Please see the POPLA statement here.

Link to my main thread is here.

Decision
Successful
Assessor Name
Anita Burns
Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) due to the motorist not displaying a valid ticket/permit.
Assessor summary of your case
The appellant has provided a 10 page document to POPLA, listing grounds of appeal and going into detail on each specific point. For the purpose of my report, I have summarised the grounds into the following points, however I have ensured I have checked each point the appellant made before coming to my conclusion. The appellant states that: 1. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA). 2. Grace Period: BPA Code of Practice 2019 – non-compliance 3. Photo evidence not sufficient to identify the vehicle, confirm the observation of the vehicle contravening the terms and conditions of use of the car park, nor confirms the time of the alleged breach 4. Notice to Keeper dated XX XXXXXXXX 2019 is invalid as it states inconsistently within the document the demanded parking charge 5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice 6. 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 has provided evidence to support their appeal.
Assessor supporting rational for decision
In this case, I cannot see that the driver of the vehicle has been identified at any point in the appeals process. As such, the operator is seeking to pursue the appellant, as the registered keeper of the vehicle. Protection of Freedoms Act (PoFA) 2012 sets out provisions for an operator to pursue the registered keeper of a vehicle, where the driver has not been identified. As the operator is seeking to pursue the keeper, I have reviewed the notice against the relevant sections of PoFA, and I am satisfied that the operator has complied with the act. As such, the appellant, as the registered keeper is now liable for the charge. When entering onto a privately managed car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. Therefore, upon entry to the car park, it is the duty of the motorist to ensure they review the terms and conditions, and comply with them, when deciding to park. The operator has provided photographic evidence of the signage in place in the car park but due to the poor resolution I am unable to read any of the information on the signage. The operator has provided a document titled Terms and Conditions Updated 28.05.2018. The operator has provided photographic evidence of the appellant’s vehicle, observed on XX YYYYYYY 2019 from XX:XX The operator has provided a copy of the PCN that was issued for the contravention: Not displaying a valid ticket/permit. 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 British Parking Association (BPA) Code of Practice states in section 20.5a: “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.” Additionally section 20.5b states: “In deciding whether a payment ticket has been visibly displayed on a vehicle, you must do a thorough visual check of the dashboard and windows.” Having viewed the images of the vehicle taken at site by the attendant, I am not satisfied that the operator has complied with either section 20.5a or 20.5b of the BPA Code of Practice, as the photograph’s taken do not provide a clear view of the appellant’s dashboard , therefore I am not satisfied that a thorough check of the windscreen has been done. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal. While I acknowledge that the appellant has submitted further grounds of appeal in support of their case and additional comments on the operator’s evidence, as I have allowed this appeal for other reasons, I do not consider it necessary to consider them further.

beamerguy

Well done parcaal

The PPC was scamming you.

Great shame that the BPA don't realise the number of scammers they have as members .... maybe they do ?????