POPLA Decisions

krielj

my POPLA decision. - this was 5 years ago.
Just received a bailiff letter from DCBL which, according to advice given on this forum, I shall ignore for now. What a nightmare - I thought this had died a death!

Decision

Successful Unsuccessful

Assessor Name

Adele Brophy

Assessor summary of operator case

The operator issued a Parking Charge Notice (PCN) due to parking on yellow lines

Assessor summary of your case

The appellant states that the vehicle was only left for 30 seconds whilst they went to withdraw

money from the cash machine. The appellant has advised that their daughter was waiting outside

with a baby that was unwell. The appellant has advised that the vehicle was not blocking any

other users or pedestrians.

Assessor supporting rational for decision

The terms and conditions of the site are, “Failure to comply with the following at any time will

result in a £100 Parking Charge being issued to the vehicle’s driver. No parking on yellow lines or

in an area with hatched markings. The operator issued a PCN to the appellant for parking on

yellow lines. The operator has provided photographic images of the appellant’s vehicle

registration RK54 ZLN parked in an area marked with yellow lines. The appellant has advised

that they were only at the cash machine approximately 30 seconds whilst withdrawing some

money. Section 13.2 of the British Parking Association (BPA) code of practice, advises,” You

should allow the driver a reasonable grace period in which to decide if they are going to stay or

go. If the driver is on your land without permission you should still allow them a grace period to

read your signs and leave before you take enforcement action”. From the appellants own

admission they did not spend their time reading the signage at the site, therefore a grace period

is not relevant in this instance. I note the appellant’s comments and the reason for parking at the

site in question. However, when looking at appeals, POPLA considers whether a parking contract

was formed based on the evidence provided by both parties. While I acknowledge the appellant

was withdrawing cash to use within the site, and their daughter was waiting outside with a poorly

baby, POPLA cannot allow an appeal where a parking contract was formed, and the motorist did

not keep to the terms offered. When parking on private land, a motorist forms a contract with the

operator by parking their vehicle on the land. The terms and conditions of the contract are

outlined in the signage offered at the car park. Ultimately, it is the responsibility of the motorist to

ensure that when they enter a car park, they have understood the terms and conditions of

parking offered prior to parking and entering a contract. By remaining within the site, the

appellant accepted the terms and conditions offered but failed to adhere to them. As such, I

conclude that on this occasion the operator issued the PCN correctly

Umkomaas

my POPLA decision. - this was 5 years ago.
Just received a bailiff letter from DCBL which, according to advice given on this forum, I shall ignore for now. What a nightmare - I thought this had died a death!

If it is from DCB Limited, then it's a debt collector letter, and, at this stage, can be ignored. If it is from DCB Legal, you will need some further advice which we will give you, but you'll need to take this to a new thread of your own please. 

krielj

thanks Umkomaas (btw - I lived in Durban for 30 years) - it was indeed from the Limited company. Thanks for all the advice.

Coupon-mad

The appellant states that the vehicle was only left for 30 seconds whilst they went to withdraw

money from the cash machine. The appellant has advised that their daughter was waiting outside

with a baby that was unwell. The appellant has advised that the vehicle was not blocking any other users or pedestrians.

No wonder you lost.  Oh dear. 

krielj

Coupon-mad said:

The appellant states that the vehicle was only left for 30 seconds whilst they went to withdraw

money from the cash machine. The appellant has advised that their daughter was waiting outside

with a baby that was unwell. The appellant has advised that the vehicle was not blocking any other users or pedestrians.

No wonder you lost.  Oh dear. 

not a very helpful response. Would you care to elaborate?

Fruitcake

krielj said:

Coupon-mad said:

The appellant states that the vehicle was only left for 30 seconds whilst they went to withdraw

money from the cash machine. The appellant has advised that their daughter was waiting outside

with a baby that was unwell. The appellant has advised that the vehicle was not blocking any other users or pedestrians.

No wonder you lost.  Oh dear. 

not a very helpful response. Would you care to elaborate?

Admitting fault will have shot the appeal down in flames.
Mitigating circumstances are irrelevant as far as PoPLA appeals are concerned.

maxxpayne

Decision Successful.

Another victory. This time around in Islington, London. Private windscreen ticket issued by Wing Parking. Follow the thread and the appeal at https://forums.moneysavingexpert.com/discussion/6228239/wing-parking-second-stage/.

VintageMagpie

Parking Eye PCN Welcome Break - Part 1

NOTE: Original Post for Advice 
https://forums.moneysavingexpert.com/discussion/comment/78036698#Comment_78036698

***ORIGINAL APPEAL LETTER***

ADDRESS

EMAIL
VEHICLE
25th of October 2020

Dear Sir/Madam,

On DATE ParkingEye Ltd. issued a Parking Charge Notice to myself (as hirer/lessee of the vehicle), highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “remaining at the car park longer than the permitted free stay”.

As the hirer/lessee I wish to refute these charges and have this PCN cancelled, on the following grounds:

1) No Hirer/Keeper Liability

2) Driver not identified

3) Inadequate Signage

4) No Landowner Authority

 

1) No Hirer/Keeper Liability

The Notice to Hirer is not compliant with either the Protection of Freedoms Act 2012 or the BPA Code of Practice.

Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper or hirer but this right is strictly subjected to statutory conditions being met by the operator, without which the right to 'keeper or hirer liability' does not exist.

However, the creditor has not satisfied the conditions to transfer liability:

 

POFA Paragraph 14 (2)The conditions are that- (a)the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragragh 13(2) and the notice to Keeper.

 

The documents required are defined here:

Paragraph 13 (2)(a) 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;

(b)a copy of the hire agreement; and

(c)a copy of a statement of liability signed by the hirer under that hire agreement.

This requirement is also clearly stated in the BPA Code of Practice.

ParkingEye failed to send a copy of the required documentation, either with the original Parking Charge Notice or the subsequent reminder.

2) Driver not identified

ParkingEye has not shown that the individual they are pursuing is in fact the driver who may have been potentially liable for the charge.

 

According to POFA Paragraph 5 (1)The first condition is that the creditor- (a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but (b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

 

There is no ‘reasonable presumption’ in law that the registered keeper or the hirer of a vehicle is the driver. Operators should never suggest anything of the sort. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions that a parking charge cannot be enforced. Furthermore, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Therefore, no lawful right exists to pursue unpaid parking charges from myself as hirer of the vehicle, where an operator cannot transfer the liability for the charge using POFA.

3) Inadequate Signage

POFA states regarding onsite signage: 

Paragraph 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.

 

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 bring the parking charge to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion.

So for this appeal, I put ParkingEye to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

 

4) No Landowner authority

The creditor is put to strict proof of full compliance with the BPA Code of Practice (Paragraph 7).

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement

As this operator does not have proprietary interest in the land, then I require that they produce strict proof of both compliance with all of the above requirements and of the contract terms with the actual landowner (not a lessee who has no more title than the operator).

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). No evidence has been supplied lawfully showing that ParkingEye is entitled to pursue these charges in their own right in the courts (which is a strict requirement within the BPA Code of Practice)
I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance, particularly points 7.3 b) and d).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers.

I require ParkingEye to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of BPA Code of Practice. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an ‘agreement’ with a non-landholder managing agent - otherwise there is no authority.

**********

I have contested this with ParkingEye with regards to their PCN reference XYZ, but they have written to me (dated DATE) to say I have been unsuccessful and provided a POPLA reference XYZ.

I respectfully request that this parking charge notice appeal be allowed and await your decision.

Yours sincerely,

AM

VintageMagpie

Parking Eye PCN Welcome Break - Part 2

NOTE: Original Post for Advice 
https://forums.moneysavingexpert.com/discussion/comment/78036698#Comment_78036698

***POPLA DECISION***

Decision

Successful

Assessor Name

Taylor-Jade Ryan

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to remaining at the car park for longer then the permitted free stay, in accordance with the terms and conditions set out in the signage.

Assessor summary of your case

- The Notice to Hirer is not compliant and the driver has not been identified under the Protection of Freedoms Act 2012 (PoFA 2012) or the British Parking Association (BPA) Code of Practice. - Inadequate signage under Section 18 of BPA Code of Practice. - No landowner authority.

Assessor supporting rational for decision

The appellant is acting on behalf of 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 hirer of the vehicle for the charge in line with (PoFA) 2012. 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 no evidence to show that the required documentation was obtained from the keeper or that it was sent to the hirer. 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 hirer of the vehicle. I am not therefore satisfied that the PCN was issued correctly and I must allow this appeal. I note the appellant has raised other issues as grounds for appeal, however, as I have decided to allow the appeal for this reason, I did not feel they required further consideration.

KeithP

Well done @VintageMagpie.

Can you please post a link to your existing thread in your two posts above?