POPLA Decisions

kryten3000

Umkomaas said:

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

Thanks! Civil Enforcement (141 in the POPLA code) issued the charge.

tiengomar

Decision

Unsuccessful

Assessor Name

Richard Beaden

Assessor summary of operator case

The operator has issued a Parking Charge Notice (PCN) as the site is for authorised users only.

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. As the driver of the vehicle has not been identified, I must ensure that the operator has complied with the strict requirements of the Protection of Freedoms Act (PoFA) 2012. PoFA 2012 is used to transfer liability for the PCN from the driver of the vehicle, to the keeper of the vehicle when the driver has not been identified. I must consider if the notice meets the requirements of PoFA 2012 (Schedule 4, Paragraph 9(2)), I am satisfied that the Notice to Keeper that was sent on 15 December 2020 meets the requirements and was sent within the “relevant period”, as outlined within the act. As such, liability for the PCN is with the registered keeper of the vehicle, which in this case is the appellant. The operator has provided photographs of the signage, which it has installed around the car park. These signs show the following terms and conditions: “PERMIT HOLDERS ONLY… PATIENTS/VISITORS TO NEWBURY PLACE HEALTH CENTRE MUST REGISTER FOR A PERMIT TO PARK FOR UP TO 2 HOURS ON A TOUCH SCREEN IN THE SURGERIES/PHARMACY/OPTICIANS… IF YOU BREACH ANY OF THESE TERMS YOU WILL BE CHARGED £100”. The operator has issued a Parking Charge Notice (PCN) as the site is for authorised users only. The Automatic Number Plate Recognition (ANPR) images the operator has provided show that the vehicle entered the car park on 10 December 2020 at 11:23 and left at 11:39. A total stay of 16 minutes. I have not included the seconds as they are not relevant to the outcome of the appeal. The operator has also provided a copy of a system printout, which shows if the vehicle was registered at that car park on the day in question. The printout shows that the vehicle was not registered for a permit. The appellant advises that they are the keeper of the vehicle. The operator has used the provisions of the Protection of Freedoms Act 2012 to make the appellant liable for the charge as keeper of the vehicle. They dispute that the operator has allowed the required grace periods. The driver is permitted a consideration period of five minutes to read the signage and to decide if they are going to stay or go. In this case the driver was on site for 16 minutes and did not register. These means that they exceeded the consideration period and as they did not register no other grace period is relevant to this appeal. They advise that the signage at the signage is insufficient and does not prominently display the sum of the charge. They have repeated these points within their comments. The operator has provided date and time stamped photographic evidence of the signage at the site. It has also provided a site map to show where the signage is located. These images show that there is a clear prominent entrance sign as the driver enters the site. Section 19.3 of the British Parking Association Code of Practice requires there to be prominent signage throughout the site. There is no requirement for signage to be visible from every bay. Having reviewed the evidence I can see that there is prominent signage throughout the site. I can also see that the sum of the PCN is prominently displayed. I am satisfied that the signage is sufficient to bring both the terms and conditions for parking and the amount of the PCN to the attention of the driver. They explain that the operator has not shown that who it is pursing is the driver and therefore liable for the charge. As I have stated previously the appellant is liable for the PCN as keeper of the vehicle. They advise that the operator has not provided evidence of an agreement with the landowner for the management of the site. In their comments they advise that what has been provided is invalid. The operator is not required to provide a copy of the contract it holds with the landowner or its agent. In this case the operator has provided a witness statement which confirms that a valid contract exists. The appellant has challenged the validity of this statement but has not any evidence which casts doubt on the evidence provided by the operator. They explain that the PCN does not state the period parked. The PCN has the date, the time of entry and exit. It therefore does state the period of parking. They advise that the images on the PCN do not comply with the British Parking Association Code of Practice. In their comments they advise that the images are not date and time stamped. I have been provided with both copies of the PCN and a copy of the images generated by the ANPR. These are all data and time stamped and these data and time stamps show on the PCN. The appellant has not provided any evidence which shows that this was no included on the PCN they received. They question the reliability of the ANPR cameras used at the site. The operator has provided a statement which confirms that it regularly audits its equipment for accuracy. The appellant has not provided any evidence which would indicate that there was an issue with the timings stated. They advise that the signage does not warn drivers what the ANPR date will be used for. The examples of the signage warn that the ANPR cameras are used to monitor the car park and issue PCN. I am satisfied that this is adequate warning of what the camera data will be used for. They explain that the operator does not have planning permission or advertising planning consent for its cameras and signage. These concerns do not impact on the ability of the driver to read or comply with the terms and conditions stated on the signage so are not relevant to the outcome of this appeal. Any concerns of this nature would need to be taken up with the local authority in this area. The appellant has provided a document in support of their appeal. In their comments the appellant advises that it is not relevant if the appellant has admitted that they were the driver or not. In this case the operator has proven that the appellant was the keeper of the vehicle and as such is liable for the charge if they fail to provide the drivers details. They advise that no evidence has been provided which shows that the cameras were calibrated. I am satisfied that I have already addressed this point above. Having reviewed the case the driver remained parked at the site without a permit, breaching the terms and conditions for using the car park. 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.

Does anyone think it is worth continuing to pursue this? I am surprised that popla state that "The operator is not required to provide a copy of the contract it holds with the landowner or its agent".

Umkomaas

You can't pursue this further on the basis that you don't like the decision. With a CEL case, the best possibility of success for a registered keeper is the Notice to Keeper not being PoFA compliant. POPLA says it is, but they're not great at PoFA stuff. But because your only other thread about this case was woefully short of any detail, there's not much we can be expected to comment on. It doesn't mean you have to pay this, but if you can scan a redacted copy of the NtK (on your original thread - not this one) both sides, but leave all dates showing, we can check POPLA's comments. 

Any further help and advice you want - on your original thread please. 

Fruitcake

I know that's how you received the result, but would you please add some paragraphs and post it again. At the moment it is an unreadable wall of text and making my old eyes go funny.

Coupon-mad

I can't read that.

We know that's how it shows to you from POPLA but please, please don't post it like that.  Paragraphs needed.

DontWorryBeHappy27

Operator Information and Evidence

Submitted 12/05/2021

Verification Code

4113570035

We have received your comments and we will begin your assessment in due course

Operator Name

Minster Baywatch

Operator Case Summary

See attachment.

POPLA assessment and decision

20/05/2021

Verification Code

4113570035

Decision

Unsuccessful

Assessor Name

Gemma West

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to failing to make a valid payment.

Assessor summary of your case

The appellant’s case is that they were not driving the vehicle. They say that they offered to provide the operator with the name of the person who was driving for a reasonable fee of £10. The appellant states the signage was not sufficient.

 The appellant states payment was made for another vehicle which they are also the registered keeper. They say that due to waiting for another person to pay plus issues with the app resulted in them making a cash payment. The appellant has provided evidence to support the appeal.

Assessor supporting rational for decision

The appellant has stated that they are the registered keeper. I do not consider the appellant has admitted to being the driver in his appeal. I will therefore be considering his responsibility as keeper of the vehicle.

When entering onto a private 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. The operator has issued the Parking Charge for failing to make a valid payment. The operator has provided photographic evidence of the signage in place in the car park, which states: “All vehicles must either have a valid pay and stay ticket, have a valid pay by phone session or if appropriate be included on an authorised user list

....PARKING CHARGE £100.”

The operator has provided photographic evidence of the vehicle, entering the car park at 11:11:57 and exiting at 11:25:30, totalling a stay of 13 minutes. The operator has provided evidence to demonstrate that no parking session was purchased against the vehicle registration.

The appellant explains that they were not driving the vehicle. They say that they offered to provide the operator with the name of the person who was driving for a reasonable fee of £10. In order for the keeper to be liable for the parking charge, the operator has to follow the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA). Having reviewed the evidence, I consider that there looks to be a contract between the driver and the parking operator, and the appellant has not provided a current name and address for service for the driver.

Further, the notice sent complies with the relevant provisions. I am satisfied that the operator has met POFA to transfer liability. I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice. The appellant states the signage was not sufficient.

I note the appellant’s comments however; the operator has provided photographic evidence of the signage on site. From the evidence provided, including the site map I can see that there is signage located all around the site informing motorists of the terms and conditions. Given this, I must consider the signage in place at this location to see if it was sufficient to bring the terms and conditions to the attention of the driver when entering and parking at the location.

 Within Section 19.1 of the British Parking Association (BPA) Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass.

In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” In addition to this, Section 19.2 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. 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.”

 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.

Furthermore, within Section 19.3 of the BPA Code of Practice, it states that: “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.”

Having considered the signage in place, I am satisfied that the operator has installed a number of signs throughout the car park and these are sufficient to bring the specific terms and conditions to the motorists’ attention. In my view, these are “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.”

I acknowledge the appellant’s comments that the signage predates the parking charge date and does not show the details including covid.

However, I must state the signage clearly stipulates that motorists are required to make a payment to cover the duration of their stay. As such, I am satisfied the signage is sufficient. I note the appellant’s comments regarding the grace period.

Section 13.1 of the British Parking Association Code of Practice states “The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes.” In this case, the driver has remained on site for 13 minutes without making a valid payment, as such I am satisfied the driver exceeded the consideration period.

Ultimately, it is the responsibility of the motorist to comply with the terms and conditions displayed on the signage.

 On this occasion, the driver failed to make a valid payment and therefore did not comply with the terms and conditions. I conclude the PCN was issued correctly. I must refuse the appeal.

DontWorryBeHappy27

Should I redact anything from this? I hope I have enabled readability too.

Fruitcake

Asking the scammers to pay £10 to get the driver's details was a daft idea, and they were never going to agree to that. They got the keeper's details from the DVLA for £2.50, and if the NTK was PoFA compliant they can hold the keeper liable, so they don't need the driver's details.

What happened when you complained to the landowner? It's never too late to get a landowner cancellation.

Other than that you are now in ignore mode unless you get a court claim within six years.

DontWorryBeHappy27

Replied on my thread. 

Lizellebramall

Hi I’m new to this

I recieved a pcn for incorrectly putting in my reg wrong, even though I paid the correct amount of money I have appealed to popla twice and they say I must pay £100 fine as I have put the wrong reg in, I told them to look at the cameras to check if there was any other car with the incorrect reg in (there isn’t) I’ve been on the dvla website, the parking notice came 3 weeks later luckily I’ve saved the ticket and I have paid the correct amount for the time taken but just didn’t put my correct reg as I didn’t have my glasses on.  I really don’t want to pay this as I feel I paid the correct amount for the time I was there in fact I have 45 minutes left