POPLA Decisions

Michael.Swift

Place: Durham Odeon Luxe
Company: ParkingEYE
Decision: Upheld

Details:
Due to the overly complicated procedure for payment, I paid £1 less than I should have.
There are no barriers, you drive in, park up and on your return, have to input your registration number into the machine and I assumed pay whatever the machine tells you. Not in this case, you must work out how long you've stayed and pay as per their tariffs. So I underpaid by £1 on my first visit. There are no barriers to stop you leaving if you've underpaid, basically it's a trap!

I appealed to ParkingEye stating I was willing to pay the £1, but not the fine. They obviously refused so I appealed via POPLA and it was UPHELD due to the lack of clear tariff signage at the pay point.

From the email:
Assessor summary of operator's case:

 The operator issued the Parking Charge Notice (PCN) for not purchasing the appropriate parking time or by remaining at the car park for longer than permitted. 

Assessor summary of appellant's case:

 The appellant advises this was their first time using this car park and they were not aware of the exact methods of payment and cost. The appellant states the machine is not easy to use. The appellant states a payment machine notifies you how much is required to pay based on a camera recorded entry time, but this machine must not have worked in the same way. The appellant states they paid £2 but needed to pay £3 and questions the rate of the PCN in respect of this shortfall. The appellant maintains they are willing to pay the difference in tariff accordingly. The appellant states this was a genuine mistake. The appellant has provided a copy their appeal rejection letter and a bank statement in support of their grounds. 

Assessor summary of reasons:

 It is the parking operator’s responsibility to demonstrate to POPLA that it has issued a PCN correctly.
In this case the appellant has indicated they considered they used the payment machine correctly but now understands their payment fell short by £1. The operator has demonstrated the appellant was on site for 2 hours 22 minutes with a payment made for 2 hours only.
While I note the operator has shown evidence of signage listing the tariffs I must also note I have not been provided with any evidence of the pay stations of this car park. I must also recognise the operator has not shown a list of successful payments from other motorists taken on this day.
In the absence of this I cannot consider the operator has adequately rebutted the appellant’s grounds as I am unable to be certain the appellant was given clear instruction or sight of the applicable tariffs at the point of payment.
As such, I am unable to conclude with certainty that this PCN was issued correctly.
Accordingly, I must allow this appeal.
Whilst I note the appellant has raised other grounds in this case, as I have allowed the appeal for the reasons above, I will not be considering them. 

Castle

Michael.Swift wrote: »

Place: Durham Odeon Luxe
Company: ParkingEYE
Decision: Upheld

Details:
Due to the overly complicated procedure for payment, I paid £1 less than I should have.

Clearly you're not the only one judging by the comments on Tripadvisor;-.
https://www.tripadvisor.co.uk/Attraction_Review-g190832-d17810550-Reviews-Odeon_Cinemas-Durham_County_Durham_England.html

The_Deep

Surely such T&Cs are unfair in law, (CRA 2915).

bluetoffee1878

Operator - Defence Systems T/A Park Watch
Site - New Mersey Retail Park

This is the response from POPLA of my latest successful appeal. They accused a friend of mine of a disabled bay violation. An occupant of the vehicle was disabled and in possession of a blue badge.

Particularly like the last line of the assessor summary (It's in bold)

Decision Successful
Assessor Name Paul E Walker
Assessor summary of operator case
The operator states that the appellant’s vehicle was parked in a disabled bay on site without displaying a valid disabled badge. It has issued a parking charge notice (PCN) for £100 as a result.

Assessor summary of your case
The appellant states that signage on site did not make the terms sufficiently clear. He states that the PCN was not issued in line with the requirements of the Protection of Freedoms Act (POFA) 2012. He states that the charge amounts to a penalty in the circumstances. He states that the operator is not authorised by the landowner to operate on site. He states that the alleged breach did not occur. He states that the operator did not obtain the required planning permission before installing cameras and signage on site. The appellant has provided a document in which he elaborates on the above grounds of appeal in great detail.

Assessor supporting rational for decision
The operator has provided a copy of the PCN, which states that the charge was incurred for “Parking in Disabled Bay without clearly displaying a Valid Disabled Badge”. The operator has provided details of the signs installed on the site. Signage states: “Only Vehicles Displaying a current Valid Disabled Badge may park in these Disabled Bays”. The operator has provided photographs of the appellant’s vehicle taken by its attendant. The photographs are of poor quality and were taken in the dark. I am satisfied from the photographs that no disabled badge was displayed in the vehicle’s windscreen, however I am not able to determine whether a disabled badge was displayed elsewhere in the vehicle. The appellant states there is no evidence that the alleged breach occurred, on the basis that it is not possible to determine from the operator’s photographs that a disabled badge was not displayed in the vehicle. Having reviewed the evidence in full, I must concur with the appellant. The evidence shows that signage on site stated only the requirement to display a disabled badge within the vehicle, with no reference to any requirement to display the badge in a specific area of the vehicle. The operator’s photographs show only that a badge was not displayed in the vehicle’s windscreen and while it is unlikely, it is nonetheless possible that a badge was displayed elsewhere in the vehicle. I am not satisfied from the evidence that the terms of the site were breached. I am not therefore satisfied that the PCN was issued correctly and I must allow this appeal.

Coupon-mad

Having reviewed the evidence in full, I must concur with the appellant.

The evidence shows that signage on site stated only the requirement to display a disabled badge within the vehicle, with no reference to any requirement to display the badge in a specific area of the vehicle. The operator’s photographs show only that a badge was not displayed in the vehicle’s windscreen and while it is unlikely, it is nonetheless possible that a badge was displayed elsewhere in the vehicle.

Nice one! :T

bluetoffee1878

Ha Thanks - I pulled that little gem off the Land Owners website, they also state transgressions may result in a fixed PENALTY notice so threw that in too :rotfl:

arjanvirdi

Decision:Unsuccessful
Assessor Name:Anita Burns
Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) due to remaining at the car park for longer than the stay authorised or without authorisation, in accordance with the terms and conditions set out in the signage.

Assessor summary of your case
The appellant’s case is that there was insufficient signage and the sign at the entrance of the car park was covered by the metal bar, obstructing them from reading this sign. They say the parking sign was not illuminated in any way, and it was dark, with no daylight or street lights. The appellant says they were a customer on site and overstayed the free 2 hour parking by 22 minutes. The appellant says they came with two cars, and appealed both PCN’s, whilst one was accepted, this one was not. The appellant says the charge is too high as they only exceeded the time allowed by 22 minutes and they have been charged £100, which does not represent the amount of the landowner’s loss and could be seen as an unfair term in contract law. They say they understand that they are entitled to a breakdown of how this figure has been calculated. As evidence to support their appeal they have provided a photograph of the parking entrance.

Assessor supporting rational for decision
The appellant has identified himself as the driver of the vehicle on the day of the parking event, as such, I am considering the matter of driver liability. 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, which states: “Customer Only Car Park. For use only whilst shopping at Tipton Shopping Centre. 2 hour max stay… Failure to comply with the terms & conditions will result in a Parking Charge of £100”. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 19:23, and exiting at 21:45, totalling a stay of 2 hours 22 minutes. As this exceeded the maximum stay period by 22 minutes, the PCN has been issued. The appellant states that there was insufficient signage and the sign at the entrance of the car park was covered by the metal bar, obstructing them from reading this sign. They say the parking sign was not illuminated in any way, and it was dark, with no daylight or street lights. The appellant says they were a customer on site and overstayed the free 2 hour parking by 22 minutes. The appellant says they came with two cars, and appealed both PCN’s, whilst one was accepted, this one was not. The appellant says the charge is too high as they only exceeded the time allowed by 22 minutes and they have been charged £100, which does not represent the amount of the landowner’s loss and could be seen as an unfair term in contract law. They say they understand that they are entitled to a breakdown of how this figure has been calculated. As evidence to support their appeal they have provided a photograph of the parking entrance. After reviewing the operator’s case file, the appellant has commented on the evidence pack to support their original appeal. In their comments on the operator’s evidence, the appellant has referred to the timing of the Automatic Number Plate Recognition (ANPR) cameras and grace period, I cannot consider them now as these are new grounds of appeal. When POPLA invited the appellant to make comments, we did explain that this was simply an opportunity to review the evidence and provide an extended summary to their appeal, but new grounds of appeal would not be considered. While I acknowledge that the appellant says that they appealed against two PCN’s and only one was successful. However, POPLA’s role is to determine whether the appellant complied with the terms and conditions and whether the PCN was issued correctly. The operator’s own internal appeals process is outside of our remit. In this case, the appellant says there is insufficient signage and the parking charge does not represent the amount of the landowner’s loss and could be seen as an unfair term in contract law. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the British Parking Association Code of Practice. Section 18.1 of the British Parking Association Code of Practice states: “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.” While I note that the appellant says that the sign was covered by the metal bar, however, having viewed the images provided by both parties I am satisfied that this sign would not be obscured by the metal bar, as the vehicle travelled into the site. 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. Section 18.3 continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within the 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. PoFA 2012 defines “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. It is also important to consider whether the signage was visible at the time of the contravention. Appendix B of the BPA Code of Practice advises “Signs should be readable and understandable at all times, including the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as direct lighting or by using lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of retro-reflective material similar to that used on public toads and described in the Traffic Signs Manual. Dark-coloured areas do no need to be reflective”. While I acknowledge that the operator has failed to provide images showing that there is lighting in the area, the appellant has provided evidence which shows that there is lighting within the car park, as the signage is clearly visible on the image provided. Having reviewed the evidence provided by both parties I am satisfied that there is sufficient ambient lighting within this area, and that the signs are readable and understandable at all times. Having considered the signage against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. While I note that the appellant states that they were unaware of the terms and conditions, the driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Reviewing the photographic evidence of the signage on display at the site, I am satisfied that the driver was afforded this opportunity. This is a 2 hour maximum stay free stay car park and the overstay was 22 minutes. Section 13.4 of the British Parking Association (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 locations is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”. Taking into consideration the small size of the site I do not consider 22 minutes is a reasonable period. As such the appellant did not leave the site within the grace period. When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. Even if a motorist says there were events beyond their control, setting out exceptional reasons why they did not keep to the parking conditions, POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. 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 remained at the car park for longer than the stay authorised or without authorisation, 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.

Umkomaas

Sorry, can't read that massive wall of text. Any chance of throwing a good number of paragraphs in there please, to make it more readable? That one 'supporting rational' (sic) is almost 2,000 words long!

Please tell us which parking company, otherwise the decision is without context, just another POPLA decision linked to nothing/no one.

Fussy

Email from POPLA today
Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference 0513659023.
APCOA Parking - EW have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

PCN originally issued November 19 for 'Parking in a Restricted Area'
Original Post asking for advice is here https://forums.moneysavingexpert.com/discussion/6087318/apcoa-popla-stage-railway-station

Just wanted to thank everyone on here - whether you helped me directly or not.

beamerguy

Fussy wrote: »

Email from POPLA today
Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference 0513659023.
APCOA Parking - EW have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

PCN originally issued November 19 for 'Parking in a Restricted Area'
Original Post asking for advice is here https://forums.moneysavingexpert.com/discussion/6087318/apcoa-popla-stage-railway-station

Just wanted to thank everyone on here - whether you helped me directly or not.

Well done ....... Once again another BPA scammer who actually had no defence
Trouble for the BPA, if they got rid of their scammers who will pay their wages