POPLA Decisions

Castle

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.

In the year ended 30th September 2019 APCOA failed to contest 54% of all appeals, (1184 out of 2189).

MRSMN

Good Morning All

Is anyone able top provide any guidance / help please! From reading this thread its clear ive made some mistakes already!
I got a ticket just before Christmas parked in my work car park, my pass had dropped down the dashboard so only half of it was showing. I appealed the ticket and that got rejected so went to POPLA and that was rejected too.
Obviously i have paid for this ticket and really dont want to pay a fine. The manager of my centre says to his knowledge the agreement with the landlord just says a pass needs to be visible and nothing about dates etc.

WHAT CAN I DO?
Thank you

Le_Kirk

You are in the wrong place to ask for advice, this thread is all about POPLA appeals (won and lost) and you need to start a new thread, AFTER having read the NEWBIE sticky, two posts below where you clicked on this thread - usually.

SirJohnDePebble

fatboy34 said:

Dear all,

thanks for your assistance and happy to report a successful appeal versus Civil Enforcement Limited relating to Port of Wells car park in Norfolk. Below is the response from POPLA - short answer is the appeal was granted on the basis of inadequate signage. Hope this is useful to someone else and thanks again!


As I am unable to determine who the driver of the vehicle was on the date in question, I must ensure Protection of Freedoms Act 2012 has been complied with. Protection of Freedoms Act 2012 is used to transfer liability for the Parking Charge Notice from the driver of the vehicle to the keeper of the vehicle. Having reviewed the Notice to Keeper, I am satisfied that the operator has shown strict compliance with Protection of Freedoms Act 2012 and as such, liability for the Parking Charge Notice has been transferred to the keeper of the vehicle.

The appellant states that there is inadequate signage, and there is insufficient notice of the parking sum itself. 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 Section 18 of the 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 2012 (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 in place at 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 at the site is not sufficient to inform motorists of the charge associated with not complying with the terms and conditions of the site. In terms of POPLA appeals, the burden of proof belongs with the operator to demonstrate it has issued the PCN correctly. Therefore, based on the evidence of the signage provided to me, I do not consider that this PCN has been issued correctly. The appellant has raised other grounds for appeal. However, as I have allowed the appeal I have not consider them.

I appealed myself on the same grounds of signage at Port of Wells (plus some other things) and it was unsuccessful.  It seems the concept of precedent doesn't apply at POPLA and it's a bit of a lottery. Is it worth posting up the text of the decision on here for info?

Fruitcake

SirJohnDePebble said:

fatboy34 said:

Dear all,

thanks for your assistance and happy to report a successful appeal versus Civil Enforcement Limited relating to Port of Wells car park in Norfolk. Below is the response from POPLA - short answer is the appeal was granted on the basis of inadequate signage. Hope this is useful to someone else and thanks again!


As I am unable to determine who the driver of the vehicle was on the date in question, I must ensure Protection of Freedoms Act 2012 has been complied with. Protection of Freedoms Act 2012 is used to transfer liability for the Parking Charge Notice from the driver of the vehicle to the keeper of the vehicle. Having reviewed the Notice to Keeper, I am satisfied that the operator has shown strict compliance with Protection of Freedoms Act 2012 and as such, liability for the Parking Charge Notice has been transferred to the keeper of the vehicle.

The appellant states that there is inadequate signage, and there is insufficient notice of the parking sum itself. 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 Section 18 of the 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 2012 (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 in place at 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 at the site is not sufficient to inform motorists of the charge associated with not complying with the terms and conditions of the site. In terms of POPLA appeals, the burden of proof belongs with the operator to demonstrate it has issued the PCN correctly. Therefore, based on the evidence of the signage provided to me, I do not consider that this PCN has been issued correctly. The appellant has raised other grounds for appeal. However, as I have allowed the appeal I have not consider them.

I appealed myself on the same grounds of signage at Port of Wells (plus some other things) and it was unsuccessful.  It seems the concept of precedent doesn't apply at POPLA and it's a bit of a lottery. Is it worth posting up the text of the decision on here for info?

Yes please. Hopefully people will be able to play spot the difference and avoid an unsuccessful result. However, PoPLA assessors and their trainers/senior assessors are poorly trained as we have seen recently on here. 
Hopefully you realise there is no requirement to pay just because a PoPLA appeal doesn't go in your favour.

Umkomaas

Seems, like the NEWBIES sticky, this sticky has also duplicated with one version stuck to the top of the forum, the other sliding rapidly down it!

Tank40

Appeal allowed 
Vehicle was a hire car; ECP did not comply with POFA (among other BPA CoP transgressions); Shell PLC weren't really interested.  

Decision: Successful

Assessor Name: Paul E Walker

Assessor summary of operator case

The operator states that the vehicle was parked on site for longer than allowed. It has issued a parking charge notice (PCN) for £100 as a result.

Assessor summary of your case

The appellant states that he is not liable for the charge as the vehicle’s hirer under the Protection of Freedoms Act (POFA) 2012. He states that the operator’s photographic evidence is not compliant with the British Parking Association (BPA) Code of Practice. He states that there is no evidence of the parked period. He states that the operator was not authorised by the landowner to operate on site. He states that signage on site did not make the terms sufficiently clear. He states that the automatic number plate recognition (ANPR) system in user on site is not reliable or accurate. 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 appellant is the hirer of the vehicle in question. The driver of the vehicle on the date in question has not been clearly identified and the operator is therefore pursuing the appellant for the charge as the hirer of the vehicle in line with POFA. POFA requires that when pursuing a parking charge from the hirer of a vehicle, an operator obtains from the keeper of the vehicle “a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement”, “a copy of the hire agreement” and “a copy of the statement of liability signed by the hirer under that hire agreement.” POFA also requires that an operator issues a “notice to hirer” as well “a copy of the documents mentioned […] and the notice to keeper.” The operator has provided evidence to show that a copy of the relevant hire agreement, which includes a statement of liability, was obtained from the hire firm. There is no evidence that “a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement” was obtained. I am not satisfied from the evidence that the operator has adhered to the requirements set out by POFA in order to transfer liability for the charge to the appellant as the hirer of the vehicle. I am not therefore satisfied that the PCN was issued correctly and I must allow this appeal.

ECP's not complying with POFA was always the strongest point although they were also non-compliant with BPA CoP in half a dozen ways any of which may/ought to have resulted in allowing the appeal too.

Thread here:
https://forums.moneysavingexpert.com/discussion/6083165/ecp-vs-hire-car-visit-to-petrol-station

15spud

Hi All my appeal below would be great to receive your feedback before I submit:

"APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2019, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1.     Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

4. The amount demanded is not a Genuine Pre-estimate of loss.

5. Instructions were followed in accordance with the signage to pay at machine which was actioned.

Here are the detailed appeal points.

1. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.")

2.     No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

4. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowiing from a breach of the parking terms.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

 

5.     Poor Signage and Unclear Instructions.

The Keeper of the vehicle confirms that a driver of his vehicle parked at xxxxxx on the 16th December for 52 minutes. Upon arriving at the site the driver followed the instructions presented on the signage to “pay at machine.” The driver visited the nearest ticket machine to his vehicle approximately xx meters away and purchased a ticket for 2 hours (as per the attached). This ticket was displayed in the vehicle during the stay.

It has since been brought to the drivers attention that the machine used to purchase the ticket was in fact owned by the local council and not premiere parking for an adjoining number of car parking spaces.

Upon revisiting the site there is no clear signage to explain what machines are owned by premiere park and where these machines are located.

Measurements taken from the parked vehicle show that the closest ticket machine owned by Premier Park is in excess of 37m away and painted black with no distinguishing features. Where as the ticket machine which was used was highlighted with a large “pay here sign” adjacent to Premiere Parks signage.

This concludes my appeal.

Le_Kirk

This thread is for appeal outcomes not for having your appeal critiqued.  Post it in your open thread is you have one, if not start one (although they are called discussions this week!)

mrRobot1

Decision

Unsuccessful

Assessor Name

James Keeling

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for the following reason: “Not Parking Wholly Within Bay.”

Assessor summary of your case

The appellant’s case is that the signage was not apparent at the site. They state that the alleged contravention was not valid under Article 7 of the Universal Declaration of Human Rights. They state that the operator has targeted motorists unjustly and that they have been discriminated against because they were not present to discuss the issuance of the PCN. They state that other motorists were not ticketed. They state that as they were not in their vehicle at the time of the PCN being issued, they were dehumanised and discriminated against illegally. The appellant has provided images of the signage and of other parking events.

Assessor supporting rational for decision

The appellant has identified themselves as the driver of the vehicle. As such, I will be considering their liability for the PCN as the driver. The operator has provided pictorial evidence of the signage, which states:” …failure to comply with the terms & conditions may result in a parking charge…Park within the white lines of The Parking Bay Only…£100 Parking Charge.” The operator has provided images of the vehicle, with registration NJ10PNK, parked with the driver side of the car over the line of the bay. The appellant states that they issuance of the PCN was discriminatory and invalid under Article 7 of the Universal Declaration of Human Rights. The terms and conditions of the car park and the parking contract are outlined in the signage on display at the site. The requirement to park within the white lines of the bay is very clear in the signage. The potential charge which could be applied for not parking in line with the terms of the parking contract is also very clear. Even if the appellant did not see the signage, 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 appellant as the driver was afforded this opportunity. As such, the appellant has not been discriminated against and the PCN is not invalid in any way. The appellant states that other motorists were not issued with a PCN. POPLA considers appeals on a case by case basis, based an individual parking event. We do not take other motorist’s parking into account. The appellant states that the signage is insufficient. Having reviewed the evidence, I am satisfied that the signs on the site were sufficiently conspicuous, legible and clear in their communication of the terms and conditions of the car park. The operator has included a site map and provided photographic evidence to establish the locality of signage throughout the car park. Upon review of this evidence, I am satisfied that the signage is sufficient to form a contract with the motorist. Upon consideration of the evidence available to me, it is clear that the appellant failed to park within the marked bay and has breached the terms and conditions. Therefore, they have accepted the potential consequence of becoming liable for a PCN. Accordingly, I conclude that the PCN has been issued correctly and I must refuse this appeal.