POPLA Decisions

stubbornhamslice

Delighted to report a successful POPLA appeal against CEL, thanks in part to the useful hints/tips/legal angles of attack on the MSE forums and others.

The appeal was successful on the grounds of no evidence of landowner authority. 

The initial appeal to CEL was submitted without realising all this help was out there, so it didn’t go down the Keeper/Driver route. Instead, it was appealed that the driver was unable to pay due to the phone and pay system being faulty - it greets (yes, it still did a month after the alleged contravention and probably does now) the caller with an error message and does not match the payment instructions on signage. It was therefore claimed that the phone system was faulty and/or the signage is misleading, as it did not reflect the payment process.

Naturally CEL (Star park) rejected and stated “the telephone line was working perfectly”, which by default meant their signage was inadequate and/or misleading. Of course at POPLA they reiterated the phone line was working perfectly AND that the signage was compliant with BPA - they didn’t address they issue of whether the phone line and signage match each other, presumably because they couldn’t say that. Video evidence from the driver of the call was submitted, providing concrete proof.

With the POPLA appeal the driver had knowledge of the land owner authority and other avenues. This is what made for particularly interesting reading of CEL’s POPLA response, which included a Confirmation of Authority dated 2mths AFTER the date of alleged contravention, and not signed until a further 2weeks had passed - there is a beauty in the rise of electronic document signatures that show a time stamp! Having already called the appeal a “deliberate attempt to subvert the appeals process” (ref. inclusion of matters not submitted in PPC appeal), it’s surprising they thought the driver wouldn’t be savvy enough to pick up on this. The driver very much enjoyed doing so in the comments on CEL’s evidence. Presumably they considered the CoA’s statement of “further authorised to pursue any outstanding PCN” - presumably ones correctly issued before the date of the CoA - to be sufficient. Driver commented that as CEL had identified itself as issuing (albeit incorrectly) the PCN, they had not provided evidence that they had authority to issue a PCN at that time. This is the conclusion the assessor reached.

She didn’t comment on the other evidence, other than to state key points that had been raised. There were two points worth mentioning here.

The appeal was submitted in December 2020 during the POPLA adjournment period, so should not have gone any further than being initially received by POPLA. The case was not resumed until March/April 2021 and POPLA said they would submit the appellant’s evidence to CEL, giving them 21days to respond. When the appellant read CEL’s evidence, it was dated 19th January 2021 - by some “strange” coincidence the same date that the CoA was created - so they had received no fewer than 93 days to respond. The appellant stated that this was in fact the subversion in the appeals process. 

The other concerning piece of evidence given by CEL was the phone and pay call log, which included the vehicle registration as part of the record of the call events, despite the registration never being given. The only way they could have linked the reg to a call at the time was to use ANPR and automatically request keeper details. That would never be acceptable cause for access and would cost money for every single vehicle entering the car park, even if it left without parking/paying within the grace period. Therefore it must be concluded they altered the call record to their case. Possible meanings of that include misuse/alteration of personal data, fraud.... the list probably goes on.

The driver commented with these issues but they were overlooked due to lack of evidence of owner authority, but it raises serious questions about POPLA (or more likely confirms existing suspicions) and the extent to which the PPC will go to scam the motorist.

Next steps? Bask in a victorious glow, ICO complaint, subject access request, report to Action Fraud? All seem appealing!

Umkomaas

Next steps? Bask in a victorious glow, ICO complaint, subject access request, report to Action Fraud? All seem appealing!

Why not. It won't cost you anything other than a bit of time and trouble. Also consider the following, which I advise when such lack of landowner authority is confirmed by POPLA (or suitably adapted if it's a court decision). If you are to pursue it further, I'm sure the forum will be absolutely delighted to assist, if so, would you mind opening a new thread where we can get down to work with you, rather than taking this POPLA Decisions sticky off track. 

In view of this quite clear statement from POPLA, why not give the PPC a dose of their own medicine by making life uncomfortable for them?  

Write to the DVLA and complain that POPLA has grave doubts that the PPC has authority to operate at this site. Ask that the DVLA investigates and reports back to you. In particular they should calculate how many charges have been issued, and should there be no valid landowner authority, the PPC should be required to cancel all charges for that site and repay motorists who have been misled and paid. Email in the first instance:

ccrt@dvla.gov.uk (and) 

KADOEservice.support@dvla.gov.uk 

Send to both. 

If you get a fob off from that approach, follow it up with a full blown Freedom of Information request. It will be more difficult for them to hide under FOI. 

https://www.whatdotheyknow.com/

You might also consider issuing the PPC a Letter of Claim prior to a possible county court claim for breach of the DPA. Read these:

http://parking-prankster.blogspot.com/2017...0-for-data.html

http://parking-prankster.blogspot.com/2016...orist-wins.html

https://www.parkingcowboys.co.uk/data-protection-act/

There has to be some process of backlash against PPCs to make them think twice before issuing tickets on a scattergun basis and their unchecked harvesting of personal data from the DVLA on an industrial scale. 

Fruitcake

Well done, especially doing this without much or any forum help, and thanks for letting us know.

I suggest complaints also go to Trading Standards, the BPA, the DVLA and DVLA KADOE team, your MP, and the landowner. The latter is liable for the actions of their agents, so is responsible for this data breach.
You could issue your own claim for a DPA/GDPR breach. The going rate seems to be a claim for about £500. You don't need to prove any loss other than that the scammers obtained and processed your data in breach of the GDPR.

DVLA contact details, 

ccrt@dvla.gov.uk and KADOEservice.support@dvla.gov.uk

KADOE Contract requirements,

CONTRACT (publishing.service.gov.uk)

If you decide to take this further, please start a separate thread.

k3wt

I would like to say thank you to everyone on here for the wealth of information shared. After HOURS of effort (if not days! so be prepared appellants) I have had a successful response to my appeal. Despite the time and effort spent I simply could not accept this and pay these scum.

POPLA Response is as follows for reference that appellants will be able to utilise for years to come (as I have also benefitted from others):

Decision

Successful

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for no valid pay and display/permit was purchased.

Assessor summary of your case

In their appeal the appellant has raised a number of grounds of appeal.

1. The operator has not complied with the grace period.

2. The entrance signs are inadequately positioned and not visible to oncoming traffic and therefore would not be illuminated by vehicle headlights. The signage on site is not lit and they are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

4. There is no evidence of landowner authority in compliance with the British Parking Association (BPA) Code of Practice.

5. There is no evidence of the period parked versus attempting to the read the terms and conditions before deciding against parking/entering into a contract.

6. The Notice to Keeper (NTK) does not meet PoFA 2012 requirements. The operator failed to deliver the PCN within the relevant period.

7. Vehicle images contained in the PCN are BPA Code of Practice non-compliant. They do not have time and date stamps, nor do they clearly identify the vehicle entering or leaving the site.

8. The ANPR system is neither reliable nor accurate. The appellant has provided photographs of the signage on site at night and said that as the signs are positioned high up on pole, they were difficult to read. In their motorist comments the appellant has reiterated their case.

Assessor supporting rational for decision

The appellant has raised several grounds of appeal. However, my findings will focus on Section 7 of the British Parking Association (BPA) Code of Practice, as this ground has persuaded me to allow the appeal.

Section 7.1 states: “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”.

When an appeal comes to POPLA, the burden of proof begins with the operator to evidence the PCN has been issued correctly. I would expect an operator to provide evidence of written authorisation from the landowner for it to carry out parking management on the land to allow this to be considered as part of the assessment. In this instance, the operator has not provided a copy of a landowner agreement contract or a witness statement.

The operator has provided photographs of the signage on site, but it is possible that any contract might have expired. Having reviewed the evidence provided, there is nothing to demonstrate that the operator had landowner authority on the date of the contravention.

Without this relevant information being provided, I am unable to conclude if the PCN has been issued correctly. 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.

Accordingly, I must allow the appeal.

Umkomaas

Well done. For others, the PPC is Euro Car Parks. 👆

Pauli2

Another win. I didn't make a separate ongoing thread but through this site and helpful posters managed to take apart the evidence provided by ParkingEye, thanks to this site and all posters. 

Decision

Successful

Assessor Name

Eileen Ioannou

Assessor summary of operator case

The Parking Charge Notice was issued for either not purchasing a valid pay and display ticket or by remaining at the car park for longer than permitted or by not entering registration details via the terminal.

Assessor summary of your case

Within their appeal the appellant confirms that they are the Registered Keeper of the vehicle stating that they are not liable for the charge disputing various grounds in respect of the British Parking Association (BPA) Code of Practice. I can see that the appellant refers to signage, grace period landowner authority. They also say the operator has not identified the driver, that the Notice to Keeper does not meet the Protection of Freedom Act (PoFA) 2012 in respect of compliance of establishing Keeper liability. The appellant has reiterated their grounds after reviewing the operator’s evidence.

Assessor supporting rational for decision

The Parking Charge Notice was issued for either not purchasing a valid pay and display ticket or by remaining at the car park for longer than permitted or by not entering registration details via the terminal. Within their appeal the appellant confirms that they are the Registered Keeper of the vehicle stating that they are not liable for the charge disputing various grounds in respect of the British Parking Association Code of Practice. I can see that the appellant refers to signage, grace period landowner authority. They also say the operator has not identified the driver, that the Notice to Keeper does not meet the Protection of Freedom Act (PoFA) 2012 in respect of compliance of establishing Keeper liability. The burden of proof begins with the operator to demonstrate that it has correctly issued the parking charge with evidence and information to support their submission. Section 7 of the British Parking Association states that a parking operator must have written authorisation from the landowner or an appointed agent prior to enforcement commencing on a private car park. The written authority must state that the landowner or its appointed agent is required to keep to the BPA Code of Practice and that authority has been granted to issue enforcement and pursue outstanding charges. However, in this case the parking operator has provided a supply agreement without a commencement date nor is there any clear indication of the initial period that the contract runs from, this is due to the quality of the evidence supplied. Although the document is signed, I am not satisfied that it meets with the minimum standards set out by the BPA Code of Practice. The additional contractual sheets supplied by the parking operator are of a poor quality which means that this cannot be read to establish if there is any supplementary information relating to the contract being valid in respect of compliance with the BPA Code of Practice. Within their appeal the appellant had additional grounds, I do not feel that these need to be reviewed based on the outcome reached as I am not satisfied that the charge has been issued correctly, therefore I must allow this appeal.

Fruitcake

Well done. A nice win without the need of a thread. Thanks for letting us know the result.
Where did this alleged event occur please as this might help other motorists in the future.

kryten3000

A useful win from another place (I wrote the appeal for the driver).  This makes it clear that when a genuine customer of a venue fails to enter their VRM into an electronic terminal to obtain an electronic permit, the operator should treat this as a "major keying error".  

1413420625
Assessor: Adele Ditchfield
Decision: Successful

The appellant says they were attending the site as their daughter needed urgent medical assistance. Due to the circumstances they say they did not stop to read the new signage that been installed. Once inside the health centre, they say no members of staff informed them of the requirement to register their vehicle details into the terminal. The appellant says they had a pre-booked appointment, and this overrides any contract claimed by the signage. The appellant says the operator has failed to make it clear on signage that there has been a change to the terms. The appellant has quoted section 19.10 of the British Parking Association code of practice. The appellant says the signage does not comply with section 18 of the British Parking Association as the font is in miniscule size and does not appear at the entrance. Due to this, they say there was no contract agreed. The appellant says the PCN is out of proportion and has quoted Beavis. The appellant states the operator does not have authority from the landowner. The appellant has provided evidence of the appointment. The appellant has reiterated their appeal within the motorist comments. They have also stated the landowner document does not state who the person signing the contract is. They also say it does not set the boundary.
Assessor supporting rational for decisionThe appellant has identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the driver. The appellant has provided evidence they were attending an appointment at the health centre. The terms and conditions are that motorists must register their vehicle details in the terminal to be registered for a permit. The British Parking Association code of practice states in section 17.4B Major keying errors: it is appreciated that in issuing a PCN in these instances, the operator will have incurred charges including but not limited to the DVLA fee and other processing costs therefore we believe it is reasonable to seek to recover some of these costs by making a modest charge to the motorist of no more than £20 for a14 day period. Examples of a major keying error could include: Motorist entered their spouse’s car registration Motorist entered something completely unrelated to their registration Motorist made multiple keying errors (beyond one character being entered incorrectly) Motorist has only entered a small part of their VRM, for example the first three digits In these instances we would expect that such errors are dealt with appropriately at the first appeal stage, especially if it can be proven that the motorist has paid for the parking event or that the motorist attempted to enter their VRM or were a legitimate user of the car park (eg a hospital patient or a patron of a restaurant). The operator has not provided a copy of the appellant’s appeal or their rejection letter, therefore I do not know if the operator has complied with these requirements. It is the responsibility of the operator to provide the sufficient evidence. It is not necessary to address the appellant’s grounds of appeal. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal.

Coupon-mad

This makes it clear that when a genuine customer of a venue fails to enter their VRM into an electronic terminal to obtain an electronic permit, the operator should treat this as a "major keying error".  

Second time POPLA have done this and it's great!  We never thought of it but POPLA are correct.  Amazing.

Umkomaas

Well done @kryten3000 👍. Any chance you might share the name of the PPC please?