POPLA Decisions

Coupon-mad

the_franchise wrote: »

PPC: Smart Parking

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

Wow. Not the right move at all and a bad example to all your friends & family.

Not something I would be proud of, funding and sponsoring the scam against the next scared little old lady or hard up family.

If only you'd appealed this correctly from the start, Smart are 100% beatable by registered keepers and it would have been so easy to do. But don't make it worse by now saying you are going to pay, wow, this is MSE!

Coupon-mad

This was a great decision by POPLA! Well done Anita Burns for spotting a scam:

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.

cornilleou

PPC Premier Park
Decision Unsuccessful
Assessor Name Natalie Hill
Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) because the whole period of parking not paid for.

Assessor summary of your case
In summary of the appellant’s case, she has indicated that she is the registered keeper and she has appealed the PCN on the basis that no contract was formed.

The appellant indicates that she has attended the Fitness First Gym for many years and used the car park without incident. The appellant advises that the operator had sent a letter to the driver to advise of the new ANPR system, and whilst it did mention that the car registration must be entered on each occasions there was no mention of the £100 or the need to re-read signs that had been put up into the car park. The appellant argues that the driver has accepted the letter in good faith and had no reason to repeatedly checks signage. The letter was an ideal opportunity to draw attention to the contract terms and the operator did not do this, therefore no contract was formed.

The appellant advises that the operator has not provided evidence of a breach of contract and further states that it does not state in any contract that a data gap in the operator records is to be accepted by either party as proof of any breach. The appellant argues that to use data gaps is inflexible especially the terminals does not provide receipts that would allow the driver to prove correct entry.

The appellant also argues that the signage is poor and inadequate as it does not clearly state the intention to issue PCN’s even where no parking infringements have occurred. She states that the salient points are unreadable due to the small font that has been used and even read up close they are still confusing. The appellant advises that the whole emphasis of the signage is that the parking charge will be issued for parking misuse, it is not made clear that even have complied parking conditions that any issues with the terminal in the gym will lead to a £100 charge. She states that these terms are not mentioned on the terminal in the gym either.

The appellant states that there is no evidence of Landowner Authority in line with the section 7 of the British Parking Association (BPA) Code of Practice. She argues that witness statements are not sound evidence of the above and thus the operator must produce a unredacted copy of the contract with the landowner.

The appellant states that the operator has ignored POPLA recommendations and refers specifically to POPLA’s annual report from 2018. She argues that the operator has not addressed the points she raised in her appeal. The appellant has included a more detailed summary as part of her appeal.

Assessor supporting rational for decision
The appellant has been identified as the registered keeper, as the driver as not been identified liability has remained with the appellant as per the Protection of Freedom act (PoFA) 2012. As such I will be considering her liability for the PCN.

The operator has provided photographic images of the signage which states: “Blue Ice Plaza Car Park…Parking tariffs apply at all times…Up to 3 hours £1.00.” The signage also states: “All permit holders must have their vehicle pre-registered before using the car park.” It further states: “All Fitness First Members and Guests must enter their full correct vehicle registration at the terminal inside the gym on each visit to benefit from 5 hours free parking.” And: “If you enter or park on this land contravening the terms and conditions displayed, you are agreeing to pay: Parking Charge Notice (PCN) £100.”

The operator has provided Automatic Number Plate Recognition (ANPR) images showing the vehicle entering the car park at 11:07, and exiting 12:52, totalling a stay of 1 hour and 44 minutes.

The operator has provided terminal data which shows that on the 5 May 2019 the appellant vehicle registration was not registered on the terminal at the Fitness First Gym during the period of 11:07 and 12:52.

In this case the appellant has that there is no evidence of Landowner Authority in line with the section 7 of the British Parking Association (BPA) Code of Practice. She argues that witness statements are not sound evidence of the above and thus the operator must produce a unredacted copy of the contract with the landowner.

In response to the above comments, I have reviewed the operator evidence and I can see that the operator has enclosed a copy of the redacted agreement between itself and the landowner. Upon reviewing this agreement, I can see that this contract commenced on 1 August 2017 and is a rolling contract. I can also see that the Fitness First and the android terminal system is also covered in this contract. Having reviewed this document in full I am of the view that it does meet the minimum requirements set out in section 7 of the BPA Code of Practice. I therefore satisfied that the operator has authority to manage and take enforcement action on this site.

The appellant has argued her appeal that she has attended the Fitness First Gym for many years and used the car park without incident. The appellant has advised that the operator had sent a letter to the driver to advise of the new ANPR system, and whilst it did mention that the car registration must be entered on each occasions there was no mention of the £100 or the need to re-read signs that had been put up into the car park. The appellant argues that the driver has accepted the letter in good faith and had no reason to repeatedly checks signage. The letter was an ideal opportunity to draw attention to the contract terms and the operator did not do this, therefore no contract was formed. For a contract to be entered into there are a few things that need to happen. Firstly, there needs to be an offer, which must be reasonably brought to the motorist’s attention. Within parking this is done through the signage at the site, which sets out the terms and conditions. For a motorist to be bound by a contract, they must have been afforded a reasonable opportunity to read and understand the offer. Whilst I appreciate the points she has raised in respect to the letter, POPLA is unable to comment on the operator’s internal process and its decision to send such letters. It is important however to note that there is no direct requirement for the operator to contact motorist directly to inform them of any changes, section 18.10 of the BPA Code of Practice states that: “Where there is a change in the terms and conditions that materially affects the motorist then your must make these terms on the signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would the installation of additional/ temporary signage at the entrance to make it clear that the new terms and conditions apply.” Therefore, whilst it is the responsibility of the operator to give sufficient notice of any changes in terms. It is also ultimately the responsibility once the motorist has been made aware of any potential changes to ensure they check and read any signage on display. I can see that the image taken of the signage are time stamped from 30 January 2018. I have already established that the contract between the operator and landowner commenced as of 1 August 2017. Therefore, I expect that by the balance of probability that any the signage in relation to this contract would have also been put into place around this time. I am therefore satisfied on this basis that the operator has fulfilled the requirements set out in section 18.10. If the driver has failed to read the read any visible signage that has been displayed, then fault lies with them.

In her appeal the appellant has argued that the signage is poor and inadequate as it does not clearly state the intention to issue PCN’s even where no parking infringements have occurred. She states that the salient points are unreadable due to the small font that has been used and even read up close they are still confusing. The appellant advises that the whole emphasis of the signage is that the parking charge will be issued for parking misuse, it is not made clear that even have complied parking conditions that any issues with the terminal in the gym will lead to a £100 charge. She states that these terms are not mentioned on the terminal in the gym either. When considering whether the signage at this site is sufficient, I must first consider the minimum standards set out in Section 18 of the British Parking Association (BPA) Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “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.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. 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. The Act then moved on to define “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 and their content and their location on 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 alone at the site was sufficient to bring the terms and parking charge to the attention of the motorist.

The appellant advises that the operator has not provided evidence of a breach of contract and further states that it does not state in any contract that a data gap in the operator records is to be accepted by either party as proof of any breach. The appellant argues that to use data gaps is inflexible especially the terminals does not provide receipts that would allow the driver to prove correct entry. In terms of POPLA appeals the burden of proof lies with the operator to show it had issued the PCN correctly. If they do that by providing terminal data 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 terminal data, 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, will often be more persuasive. In this case, I can see in her additional comments she has continued to dispute the validity of the operator evidence yet I can see that she has not provided any physical evidence to support her claim that the driver was using the gym or that the terminal was not functioning correctly on the day. However, upon examining the terminal data that the operator has provided I can see that it clearly shows that that during the time the appellant’s vehicle was parked on the car park there was numerous vehicle registrations entered with a short space of time into the terminal. I can also see there is no massive time gap in the entries recorded or discrepancies with the registrations logged. Taking this into consideration, I am therefore satisfied that the terminal was functioning correctly. I am satisfied that the operator has clearly shown that there is no record of her vehicle details being logged by the driver between the hours of 11:07 and 12:52. As there be no other evidence provided which would cast doubt on the above, I am satisfied that the evidence provided by the operator is sufficient and the data is reliable. I am also satisfied that the driver by failing to ensure they validated the vehicle registration was not entitled to park for free so would have needed to pay £1.00 for the time parked. As there is no evidence of a payment it is clear that the driver was then in breach of the terms and conditions for this car park.

In respect to concerns she had raised regarding the use of the terminal on this site and their inflexibility to offer a receipt, it is not within POPLA remit to comment on facilities available on this site, it the appellant has concerns regarding the use terminals she will need to raise this issue directly with the operator.

I can see that the appellant has made reference to the operator ignoring POPLA’s recommendations in the annual report from 2018. She argues that the operator has not addressed the points she raised in her appeal. As I have already highlighted POPLA role is to establish whether a PCN has been issued correctly in accordance with the terms and conditions accepted upon parking. We are unable to investigate the operator internal process. I appreciate the appellant is unhappy with the operator responses and feels the operator has ignored any points made in POPLA annual reports, but I cannot simply allow an appeal on these grounds. I would recommend that she raised a complaint with the operator regarding the above factors.

I have examined the evidence and it is clear the driver was in breach of the terms that they had accepted upon parking. If they did not agree with these terms they should not have parked on this site. Therefore, I am satisfied for the reason noted above that the PCN was issued correctly. As such I must refuse this appeal.

Coupon-mad

If they did not agree with these terms they should not have parked on this site.

Change your gym! And prepare to fight this battle again in small claims, as the likes of Premier Park have no place at a gym car park, whatsoever.

Absolute scam regime - needs quashing in court. Being discussed on your thread here:

https://forums.moneysavingexpert.com/discussion/6043212

Molts

Wow - my first loss. Particularly unimpressed that Adele believes that in order to comply with POFA they only have to send the NtK out in time. This was a windscreen ticket followed by NtK. OPS own wording states that it was issued in accordance with sub-para 9 for NtK instead of sub-para 7 followed by 8 for a NtD. Should this invalidate keeper liaibility? If so is it worth making a procedural complaint to POPLA?

I further argued that if it was indeed incorrectly issued in accordance with sub-para 9 then the 14 day deadline should apply, not 28-56 days for a windscreen PCN :rotfl:

POPLA assessment and decision
02/09/2019

Verification Code
4981729001

DecisionUnsuccessful
Assessor NameAdele Ditchfield
Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) for failure to park within a marked bay.

Assessor summary of your case
The appellant says the operator has not shown the individual it is pursuing is the driver. The appellant says a compliant Notice to Keeper was never issued. The appellant says there is no evidence of landowner authority. The appellant says signage is not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the PCN.

Assessor supporting rational for decision
The appellant has not identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the registered keeper. In order for the registered keeper to be liable for the PCN, I have to consider if the operator has complied with the Protection of Freedoms Act 2012 (PoFA). The PCN was issued to the vehicle on 8 May for the parking event that occurred on the same day. To comply with PoFA the operator must allow 28 days before pursuing the registered keeper. Therefore, the operator was within their rights to pursue the registered keeper from 5 June. A notice to keeper was issued on 16 June and therefore the operator has complied with the Protection of Freedoms Act (2012). The operator has provided photographic evidence of signage in the car park that states: “PARKING IS PERMITTED FOR…Pre-authorised vehicles parked fully within the confines of a marked bay…Vehicles fully and clearly displaying a valid OPS visitor parking permit and parked fully within the confines of a marked visitor bay…BY PARKING OR REMAINING ON THIS SITE OTHER THAN IN ACCORDANCE WITH THE ABOVE YOU THE DRIVER ARE AGREEING TO THE FOLLOWING CONTRACTUAL TERMS…You agree to pay a PCN in the sum of £100”. The operator has provided photographic evidence of the vehicle parked outside of a marked bay. The appellant says the operator has not shown the individual it is pursuing is the driver. The appellant says a compliant Notice to Keeper was never issued. Whilst I acknowledge these comments, as previously discussed the operator has complied with PoFA 2012 and the registered keeper is now liable as driver details have not been provided. The appellant says there is no evidence of landowner authority. Whilst I acknoweldge these comments, the operator has provided evidence that it has authority to issue PCNs. The appellant says signage is not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the PCN. Whilst I acknoweldge these comments, in the photographic evidence of the vehicle I can see at least 2 signs, 1 next to the vehicle and 1 facing it. The operator has also provided photographic evidence of signage in the car park. From viewing all the evidence provided, I am satisfied there is sufficient signage advising of the terms including the PCN amount. When entering onto a private 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. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant parked outside of a marked bay, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

Fruitcake

I would complain to PoPLA that Adele obviously does not understand Schedule 4 of the PoFA 2012 and needs retraining.

Umkomaas

Upon consideration of the evidence, the appellant parked outside of a marked bay, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

Having stated (incorrectly) that the keeper is liable via PoFA, how can she then state that 'the appellant parked outside of a marked bay'. There is absolutely no evidence that she can call on to make this statement. On what legal precedent is she relying?

Utter rubbish, and getting worse with every POPLA decision I read.

solmyr

PPC: Parking Eye

Date: 28/08/2019

Decision: Successful
Assessor Name: Natalie Hill

Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) for 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’s case is he was the hirer of the vehicle and it was on a short-term lease at the time of the parking event. The appellant advises that he is not liable for the PCN because the operator has failed to comply with the strict requirements of the Protection of Freedom Act (PoFA) 2012. He refers to paragraphs 13 and 14 of PoFA 2012. The appellant also 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 argues that the operator has no standing or authority to pursue the charge or form contracts with drivers for this car park. The appellant says that the charge is a penalty and thus breaches the Consumer Rights Act 2015 making it prohibited, unfair and not saved or relevant to the Parkeye vs.Beavis case. The appellant had provided additional information in an attachment for this appeal.

Assessor supporting rational for decision
The appellant has been identified as the hirer of the vehicle, however, has indicated that the operator has not complied with the strict requirements of paragraph 13 and 14 of PoFA 2012 when issuing the PCN. Taking this into consideration I have reviewed the operator evidence and I can see that a PCN was issued to hire company Europcar Group on 26 April. A reminder was sent to the hire company on 26 April. However, I can see that the operator has failed to provide any evidence of the hire agreement, statement of liability or any signed statement from the hire company. I therefore unable to determine operator has complied with the requirements set out in paragraph 13 of PoFA 2012 when it has made the appellant liable for the charge. On this basis, I therefore cannot consider the PCN to have been issued correctly so I must allow this appeal. As I have allowed this appeal, I will not need to consider any other points raised the appellant.

Coupon-mad

Brilliant - the joys of having a company/hire /lease car, when you are doing a POPLA appeal! Unless POPLA have a brain fart, it's always a winning point to talk about para 13/14 of Schedule 4 of the POFA 2012 if the first PCN went to the lease firm/company.

CoreDefect

PPC: Horizon Parking

Date: 04/09/2019

Decision: Successful

Assessor Name: Sophie Taylor

Assessor summary of operator case:

The operator has issued the Parking Charge Notice (PCN) due to parking in a disabled bay without a valid disabled badge.


Assessor summary of your case:

The appellant’s case is that the charge has been levied despite no driver being identified. The appellant advises that the notice to keeper does not comply with the Protection of Freedoms Act (PoFA) 2012. The appellant states there is no evidence the operator has the landowner’s authority to issue PCNs on the land. She says she puts the operator to strict proof of compliance with the BPA Code of Practice. The appellant states that 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 the appeal.

Assessor supporting rational for decision:

As the driver of the vehicle has not been identified, I must consider the appellant’s liability as the registered keeper of the vehicle. In order to hold the keeper liable, the operator must comply with the strict provisions of the Protection of Freedoms Act (PoFA) 2012. In this case, I have been unable to assess whether the operator has complied with the requirements as it has failed to provide evidence of the notice to keeper issued. As such, I am not able to conclude the PCN has been issued correctly. As the burden of proof rests with the operator to demonstrate it has issued the PCN correctly, I must allow this appeal. I note that the appellant has raised further grounds for appeal in this case, however as I have allowed the appeal for this reason, I have not considered them.