POPLA Decisions

HergestPhil

Decision                      Unsuccessful

Assessor Name           Richard Beaden

Assessor summary of operator case (PPS London)

The operator has issued a Parking Charge Notice (PCN) as the vehicle was parked while not clearly displaying a valid permit.

Assessor summary of your case

The appellant disputes that the signage at the site is adequate. They advise that there has been a frustration of contract. The appellant disputes that the operator has made it clear where the breach occurred and did not warn the driver that the site was managed by PPS (London).

The appellant disputes that the operator has a valid contract for the management of the site. They advise that the PCN is a penalty and breaches the CRA and is not saved by Beavis.

The appellant has provided a document detailing their appeal. In their comments the appellant has questioned the validity of the contract provided and disputed that accuracy of the examples of the signage provided.

Assessor supporting rational for decision

When assessing an appeal POPLA considers if the operator has issued the Parking Charge Notice (PCN) correctly and if the driver has complied with the terms and conditions for the use of the car park. I am satisfied that the appellant was the driver of the vehicle on the day of the contravention. I will therefore be considering their liability as driver of the vehicle.

The operator has provided photographs of the signage, which it has installed around the car park. These signs show the following terms and conditions: “This car park is controlled by Warden Patrols, If you fail to comply with any of the terms and conditions stated below at any time you agree to pay a £100 Parking Charge Notice… Permit holders only. A valid parking permit must be clearly displayed on the windscreen”. The operator has issued a Parking Charge Notice (PCN) as the vehicle was parked while not clearly displaying a valid permit.

The appellant disputes that the signage at the site is adequate. Both the operator and appellant have provided photographs showing the signage at the site. The operator has provided proof documents as example of the signage and a site map showing where these signs have been installed. Section 19 of the British Parking Association sets out the requirements for signage. Section 19.2 states: “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. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use. A standard form of entrance sign must be placed at the entrance to the parking area.

There may be reasons why this is impractical, for example:

• when there is no clearly defined car park entrance

• when the car park is very small

• at forecourts in front of shops and petrol filling stations

• at parking areas where general parking is not permitted”

Both the appellant and operator have shown the entrance sign at the site and I am satisfied that both images show the same sign. I am satisfied from this document that the sign is clear and is placed in such a way as a driver would be able to easily see it as they enter the site. The sign is of the standard format required by the code of practice and I am satisfied that it is of the required font.

Section 19.3 states: “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.” From the images provided by the operator I can see that there is a line of signs in front of where the appellant parked. These signs are of the required size and are easy to see read and understand.

I note that the appellants images appear to have been taken from usual angles or to cut these signs out of the images. I feel it important to explain that the driver does not need to be able to see a sign from every space within the car park. There is only the requirement that there is sufficient signage at the site to bring the terms and conditions to the attention of the driver which on this site there are we the signs are placed at regular intervals throughout the site. I note that this can clearly be seen in the appellants images. I consider signs clearly bring the sum of the charge to the attention of the driver and are both conspicuous and legible.

They advise that there has been a frustration of contract. This site is a permit holders only site so there is no option for the driver obtain a paid ticket. The appellant advises that there was no method of obtaining a ticket listed on the signage. Operator’s do not have to advise how to obtain a ticket. If the driver did not hold a permit, they should not have parked on site longer than it took them to read the signage, discover a permit was required and leave the site. I also note that the entrance sign clearly states this is a requirement before entering the car park.

The operator has shown that the appellants vehicle was on the site form 11:57 until 12:08. This is longer than the five minutes the driver was permitted to decide if they could comply with the terms and conditions and to leave if they could not. If parking management had been suspended due to Covid-19 this would have been stated on the signage or temporary signage would have been put up.

The appellant disputes that the operator has made it clear where the breach occurred and did not warn the driver that the site was managed by PPS (London). The operator has provided the address of the site in question I am satisfied that this is sufficient to show where the driver was parked.

I can see that the entrance sign at this site clearly warns drivers that it is managed by PPS (London). All of the other signage situated throughout the car park confirms that it is managed by PPS (London). I note that the two photographs provided by the appellant to show the entrance sign are not of the entrance to the car park. The operator is not responsible for other companies signage being on the site.

The appellant disputes that the operator has a valid contract for the management of the site. Within its case file the operator has provided extracts from the contract it has with the landowner. I feel it important to explain that POPLA works on the balance of probability, the operator or appellant is only required to provide enough information to convince the POPLA assessor that on the balance of probability the points being made are true. In this case the operator has provided extracts from the contract it holds for the management of the site. I can see for this document that it is a 12 month rolling contract, which automatically renews each year unless cancelled. There is no evidence that it has been cancelled. It provided the address of this location and advised that there is a site map, while this has not been specifically provided there is nothing to indicate that the site map which has been provided is inaccurate.

The appellant has made comments regarding the contract talking about disabled bay but stated that there are many on site. This statement is referring to one particular bay which appears to be rented out to a client by the landowner.

They advise that the PCN is a penalty and breaches the CRA and is not saved by Beavis. 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 (BPA) Code of Practice. Section 19.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 19.3 of the BPA Code of Practice 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 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.

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.

Having considered the signage in place at this particular site against the requirements of Section 19 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. The Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999 has been replaced by the Consumer Rights Act (CRA) 2015. While CRA 2015 has not been considered by a court, its predecessor the UTCCR 1999 has been. For all intents and purposes, in relation to unfair terms, they are the same in substance. In ParkingEye-v-Beavis, the court considered whether an unpaid parking charge was (a) a penalty; and (b) unfair, according to UTCCR 1999. They concluded: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations”.

Borrowing on this reasoning, we do not consider the charge is a penalty and we do not consider it unfair.

The appellant has provided a document detailing their appeal. In their comments the appellant has questioned the validity of the contract provided and disputed that accuracy of the examples of the signage provided. I have already addressed these points above.

Having reviewed the case as a whole I am satisfied that the terms and conditions were clearly brought to the attention of the driver who was parked, having exceeded the reasonable consider period allowed, without a valid permit. This breaches the terms and conditions for the use of the site. POPLA’s role is to assess if the operator has issued the PCN in accordance with the conditions of the contract. As the terms and conditions of the car park have not been met, I conclude that the operator has issued the PCN correctly, the appeal is refused.

Coupon-mad

Please can we have paragraph breaks, lots of them.  We can't read that wall of text.

Yes, we know that is how POPLA supply it but please not here; we can't read it.

HergestPhil

Coupon-mad said:

Please can we have paragraph breaks, lots of them.  We can't read that wall of text.

Yes, we know that is how POPLA supply it but please not here; we can't read it.

Yes, it was an exact copy of how POPLA supplied it.  I have now added some paragraphs breaks.

Coupon-mad

Well, ignore it now and come back if they try a small claim, as per usual.

deighton2002

Your appeal was not successful

The appellant says that they parked at this site where they rented a flat and had been given written permission from ***** Housing, who are the owners, to park here.

The appellant says that the managers of the property failed to ensure that the permit was returned by the previous tenant, but they had pursued the managers to rectify the issue. They say parking comes with the flat for which they pay rent, effectively paying for this parking space. They say the written permission they had for parking included the date the PCN was issued. The appellant says this information was sent to the parking company however, they have failed to rebut this.

They say the operator states that no valid permit was displayed but surely the written permission would override this.

They say they were unable to obtain the permit but it’s like the operator is saying 'that's your fault' and expect the PCN to be paid.

They say they submitted an appeal to POPLA in their own words however, the operator’s responses are generic and should count against them. They say there was also a delay in obtaining the permit because of delays to **** and their agents as they were affected by COVID restrictions.

The appellant says that parking elsewhere at the time would have been unsafe due to COVID as the nearest unrestricted parking was a mile away and would have meant them walking through crowded streets and past a tube station, risking infection. They say they had no other option but to park where they did.

The appellant questions if the operator carried out COVID health and safety assessments as required for enforcement and for issuing permits too.

The appellant says that in the operator’s response they have quoted the Beavis case which has no relevance in this case. They say the facts of the case are different and they have a right to park here as part of their tenancy and it is stated in their contract however, the operator also refers to a parking contract yet there is a conflict between the two.

They say it is unfair to say they broke the contract of the permit they were entitled to was not and could not be provided at the time.

They say that maybe the operator’s grievance was is actually with the operator. They question if the operator has contacted **** to confirm their side of the story.

In their comments, the appellant says that the evidence provided by the operator which it says is its response, is a copy of the email to <housing assoc>.

They say the circumstances are not mitigating and the operator has not rebutted any of their evidence or commented on the issues raised.

The appellant has provided the email from **** regarding permission to park.

________________________________________________________________

The appellant has identified as the driver in their appeal to the operator. I will therefore be considering their liability for this PCN as the driver of the vehicle. The operator has provided photographs taken by its onsite warden on the date of the parking event. These show the vehicle parked in the car park and not displaying a valid permit. The operator has provided photographs of the signage at this car park. The terms and conditions for parking state “WARNING THIS LAND IS PRIVATE PROPERTY PARKING CONDITIONS APPLY 24 HOURS, 7 DAYS A WEEK Failure to comply with the parking conditions below may result in a £100.00 Parking Charge Notice… VEHICLES PARKED IN THIS AREA MUST PARK IN THE CORRECT MARKED BAY AND CLEARLY DISPLAY A VALID P.T.L PERMIT IN THE WINDSCREEN”. The operator has provided a copy of their parking permits to demonstrate that it is not present in the windscreen of the appellants vehicle.

On the face of the evidence, I do consider there to be a contract between the driver and the operator which has been breached. I will now turn to the appellants grounds of appeal to consider if these make a material difference to the validity of the PCN.

The appellant says they rent a flat onsite and it comes with the parking space.

They say that the previous tenants had not given the parking permit back, but they did chase management up about the permit.

They say that they had written permission from **** to park in the car park at the time the PCN was issued which they say should override the fact that no permit was on display.

The appellant has provided a copy of their email, dated 26/06/20 from s....at **** which states “I am happy to arrange for parking permission until 03 July… Can you provide me with your vehicle registration number?”.

It does appear that this email was replied to a few minutes later. However, the operator has provided a copy of the email they received from S...... at ****which states “Can you please give the following vehicle parking permission until Friday 03 July? MA18FOD… please confirm once completed”.

This email was not sent to the operator until 29/06/20. The PCN was issued on 27/06/20 and as such, the vehicle did not have any exemptions from the terms at that time.

The appellant says that parking elsewhere at the time would have been unsafe due to the nearest unrestricted parking being a mile away and would mean passing through busy places and tube stations, increasing the risk of COVID infection. Whilst I certainly appreciate the appellants concerns, when entering onto a privately managed car park such as this one, the 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. If for any reason a motorist cannot comply, but decides to accept the contract by remaining anyway, they will be liable for the PCN as stated on the signage.

The appellant has referred to the operator’s reliance on the Beavis case and says the circumstances are different as they pay rent which includes use of the car park. They say that their tenancy has a contract which includes parking and the operator relies on the parking contract yet there is conflict between the two. The appellant has not provided me with a copy of their tenancy so I cannot comment on this further. The Beavis case summary is used when an appellant states that a parking charge is not a genuine pre-estimate of loss. As the appellant has not raised this ground within their appeal, it is not relevant to my assessment.

I note the appellant says that the operator’s responses are generic, and they were told not to use templated appeals. They say this should go against them.

The appellant also questions if the operator has contacted **** to confirm any of this. They also say that maybe the operator’s grievance is with **** and not them. They appellant also says that they were not issued with, or able to obtain a permit due to COVID affecting **** and management agents, and therefore, they were unable to comply.

I acknowledge that the appellant needed a permit which they needed to be provided with however, they still parked in the car park accepting the terms. The PCN was issued for a breach of those terms and therefore, the operator does have a valid claim against the appellant. If the appellant was unable to obtain a permit from whom ever provides it, whether this be the management company or the landlord, then this is a third-party dispute with that relevant person, which is outside of POPLAs remit to consider. The appellant would need to raise that with the relevant third party.

Whilst the operator’s response may be generic, it has evidenced its claim. The appellant says the operator has not rebutted their evidence or addressed their comments. The burden of proof lies with the operator to evidence that it has issued the PCN correctly, once satisfied, the burden then passes to the appellant to highlight any inaccuracies with the operators claim and provide evidence of such. If the appellant provides evidence to highlight inaccuracy, then the operator must rebut this. The operator’s response may be generic, but it has evidenced that the terms were breached and the PCN was issued correctly. The appellant has then provided evidence which they believe meant they had permission to park. The operator has rebutted this claim by providing the email from the operator which was not sent to them until 2 days after the PCN was issued. I am therefore satisfied that the operator has rebutted the appellants

evidence.

The appellant questions if the operator conducted Health and Safety assessments in light of COVID, for enforcing and issuing permits. When looking at appeals, POPLA considers if a contract was formed and if the motorist kept to the parking conditions. Health and safety assessments are not within POPLAs remit. I am satisfied that a contract was formed and the terms were breached. A health and safety assessment would have no bearing on this contract. The appellants grounds of appeal do not make a material difference to the validity of the PCN.

Accordingly, I must refuse this appeal.

____________________________________________________________

my subsequent comments!

note in this that I did actually receive an Email from the owners telling me that they would arrange parking on the 26th June, and the ticket was issued 27th June - they've actually pulled that the idiot at the housing associuation, who had already failed to issue my pass, didn't send the email to them until a couple of days later - something I couldn't control or be aware of - nor was I given any opportunity to mention this detail before the tribunal - I don't recall seeing any of it in their 'pack' (which was a pile of pre-written gumf) - so I presume I did not get the final word, the parking company being invited to state something later it seems to me.

My defence that I was given permission was never mentioned in the parking companies submissions that I could see - I did copy what I could of it, although it promptly vanishes from the site forever (I wonder why?).

-----------------------------------------

edited in my own paragraphs.

I can only assume a judge would not be too impressed if shown the POPLA judgement as evidence in its original format.  - does this never happen?

I note that all my arguments they couldn't answer were answered with a generic 'When looking at appeals, POPLA considers if a contract was formed and if the............. etc'

In my case there was no badge because the housing association had shut itself down due to COVID, just like POPLA had and also partly the parking company (apart from to issue tickets and processing payments of course, but they were mainly shut when I phoned it to try and get help in the first place).

I've already told POPLA and the parking co that I will not pay this due to the frankly ridiculous customer service I received from the housing association, although that error in service can be mitigated by the COVID disaster, but then only as so much as my non display of a token should be.

---------------------------

Umkomaas - unbelievably for an 'arbitration service', the report was provided in that format I originally cut'n'pasted.

I'm baffled as to how making it so hard to read benefits POPLA, helps resolve issues, or helps the image of the maligned private parking industry.  I don't see why it would increase the chances that I would pay the fee they want.  Their apparent stuipness only emboldens me to face a court action.

-

Fruitcake

I know that's how you received the result, but please add some paragraphs breaks to make it readable.
Despite losing, hopefully you know the decision is not binding on you and you are note required to pay anything unless a judge says so.

Umkomaas

Almost 1,800 words with just two line breaks. What's being expected? 

mac_max

Would anybody have a short, fun, decision that I could use to introduce undergraduate law students to a simple judgment? Ideally with some findings on the facts and some law.
Looking forward to hearing from you. 
Best regards, MM

Fruitcake

mac_max said:

Would anybody have a short, fun, decision that I could use to introduce undergraduate law students to a simple judgment? Ideally with some findings on the facts and some law.
Looking forward to hearing from you. 
Best regards, MM

This thread is for people to post their PoPLA decisions, successful or otherwise. If you mean successful PoPLA judgements (which is not binding on the motorist), then there are hundreds of them here on this thread.

If you mean court judgement, there are several on the Parking-Prankster's blogspot, but there have been no new updates for years.
As far as this forum is concerned, there are hundreds of cases but scattered across years of posts. You might try a search using, "another on bites the dust" which should throw up a few if the very poor search facility does its job.
Other than that you will have to read through threads about court claims yourself to find what you are looking for.
We get about a hundred requests for help per day, every day of the year, so nobody is going to do the searches for you.

You might get somewhere if you start your own thread as a few posters might link you to judgments they have come across if they have time, but there is no list of court cases and results on this forum.

Coupon-mad

mac_max said:

Would anybody have a short, fun, decision that I could use to introduce undergraduate law students to a simple judgment? Ideally with some findings on the facts and some law.
Looking forward to hearing from you. 
Best regards, MM

You posted in the wrong place because this is not about small claims decisions.

This decision about PACE V LENGYEL covers what you need, though:

http://nebula.wsimg.com/07b493fc1a4ea8623a8fe73dce20287a?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

or Excel v Smith on appeal:

http://nebula.wsimg.com/87cdd1ece93beeb2f058693b81e4d057?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1