POPLA Decisions

creek48

I would like to say thank you to everyone who helps me by posting info here. 

The PCN was from Civil Enforcement Ltd. My original post is here.

POPLA Response is as follows:

Decision

Successful

Assessor Name

xxx

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) as payment was not made in accordance with the terms displayed on signage.

Assessor summary of your case

The appellant states that the sign offering the contact is in the name of a dissolved company, Star ParkManagement and is a different entity to the operator and is s stranger to any alleged contract with Star ParkManagement. They say that the entrance signs as are inadequately positioned and the signs in the car park are not prominent, clear and legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. The appellant says that there is no evidence of landowner authority. They say that the vehicle images in the PCN are not compliant with the British Parking Association (BPA) Code of Practice as they are not date and time-stamped.

Assessor supporting rational for decision

The operator has issued the parking charge notice (PCN) as payment was not made in accordance with the terms displayed on signage. When assessing an appeal, the burden of proof begins with the operator to evidence that the PCN has been issued correctly.

They say that the entrance signs as are inadequately positioned and the signs in the car park are not prominent, clear and legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. The appellant has told us in their response that they consider the charge does not reflect the loss to the landowner and is therefore not a genuine pre-estimate of loss. This matter was considered at length by the Supreme Court in the case of ParkingEye v Beavis [2015]UKSC 67. In this case, the Court recognised that parking charges have all the characteristics of a penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists. This “legitimate interests” approach moved away from a loss-based analysis of parking charges: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. 

The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss… deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.” (paragraph 99) The Court did however make it clear that the parking charge must be proportionate: “None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.” (paragraph 100) It concluded that a charge in the region of £85 was proportionate, and it attached importance to the fact that the charge was prominently displayed in large lettering on the signage.

While the specific facts of the case concerned a free-stay car park where the motorist had overstayed, I consider the principles that lie behind the decision remain the same. Taking these principles into account, I am not going to consider whether the loss is a genuine pre-estimate of loss or whether it reflects a correct loss to the landowner. Rather, I am going to consider the charge amount in the appellant's case, as well as the signage. On this, I conclude the charge is not sufficiently brought to the  attention of motorists on the signs and is therefore it does not meet the expectations of ParkingEye v Beavis. The appellant has raised other grounds in their appeal, but as I am allowing the appeal, it is not necessary for me to address these.

Fruitcake

Well done, and thanks for letting us know. Thank you especially for breaking the PoPLA decision up unto paragraphs as we know it normally appears in one huge wall of text.

Umkomaas

It concluded that a charge in the region of £85 was proportionate,

Nowhere in para 100 of the Supreme Court judgment is 'in the region of' used. It's £85, no more, no less. POPLA are implanting that term so that they can (misleadingly) use Beavis as an authority to underpin PPCs' greater-than-Beavis £100 charge. 

A good result, but POPLA avoided having to get their heads around and make decisions on the Star Park (dissolved) and CEL relationship in forming contracts with motorists. Chickened out I'm afraid.  

creek48

Fruitcake said:

Well done, and thanks for letting us know. Thank you especially for breaking the PoPLA decision up unto paragraphs as we know it normally appears in one huge wall of text.

Thanks for all your help! I am glad that I can share the good news here.

creek48

Umkomaas said:

It concluded that a charge in the region of £85 was proportionate,

Nowhere in para 100 of the Supreme Court judgment is 'in the region of' used. It's £85, no more, no less. POPLA are implanting that term so that they can (misleadingly) use Beavis as an authority to underpin PPCs' greater-than-Beavis £100 charge. 

A good result, but POPLA avoided having to get their heads around and make decisions on the Star Park (dissolved) and CEL relationship in forming contracts with motorists. Chickened out I'm afraid.  

Yeah, it is indeed a shame that they didn't comment on the rest of my points.

thegentleway

POPLA is inconsistent. I lost the previous appeal, which included exactly the same point!

Decision

Successful

Assessor Name

Anita Burns

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to not gaining the appropriate permit/authorisation, in accordance with the terms and conditions set out in the signage.

Assessor summary of your case

The appellant has provided a 13 page document to POPLA, listing grounds of appeal and going into detail on each specific point. For the purpose of my report, I have summarised the grounds into the following points, however I have ensured I have checked each point the appellant made before coming to my conclusion. The appellant states that:

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. After reviewing the operator’s evidence, the appellant says the photographs of their car were taken at the red circle indicated on the map in the photograph they provided, which is nowhere near Arterial Road or the signs shown on the plan on page 37. The appellant reiterates that there are no signs where their car was parked, as demonstrated by the picture they submitted on page 4 of their appeal.

2. The operator has not shown that the individual it is pursuing is in fact the driver who may have been potentially liable for the charge.

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

4. The ANPR is unreliable. They say the ANPR records the operator provided claim that the vehicle is arriving and leaving at the same time with the same picture. The appellant says the system is unreliable in its event logging on any objective basis. They say the car park only has one entrance and one exit and the ANPR at the entrance is front facing and the one at the exit is rear facing, yet the operator is claiming a front facing picture is the vehicle exiting.

5. Use of ANPR is unjustified.

6. The wording of the signage forbids parking, as such there is no offer to park and therefore no contract. The appellant has provided evidence to support their appeal.

Assessor supporting rational for decision

In this case, I cannot see that the driver of the vehicle has been identified at any point in the appeals process. As such, the operator is seeking to pursue the registered keeper of the vehicle. Protection of Freedoms Act (PoFA) 2012 sets out provisions for an operator to pursue the registered keeper of a vehicle, where the driver has not been identified. As the operator is seeking to pursue the keeper, I have reviewed the notice against the relevant sections of PoFA, and I am satisfied that the operator has complied with the act. As such, the registered keeper is now liable for the charge.

The operator has provided photographic evidence of the signage in place in the car park, which states: “Delivery Vehicles Only” and “Strictly No Parking. Failure to comply with the terms & conditions will result in a Parking Charge of £100”. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 09:02 and exiting at 09:37, totalling a stay of 35 minutes. As no parking is permitted in this location, the PCN has been issued because the appellant did not gain the appropriate permit/authorisation, in accordance with the terms and conditions set out in the signage. On the face of the evidence, I consider it looks like there is a contract between the driver and the operator, and the evidence suggests the terms have been breached.

I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the charge. The appellant says the Automatic Number Plate Recognition (ANPR) is unreliable. They say the ANPR records the operator provided claim that the vehicle is arriving and leaving at the same time with the same picture. The appellant says the system is unreliable in its event logging on any objective basis. They say the car park only has one entrance and one exit and the ANPR at the entrance is front facing and the one at the exit is rear facing, yet the operator is claiming a front facing picture is the vehicle exiting. This site operates Automatic Number Plate Recognition (ANPR) cameras, which capture vehicles entering and exiting the site to calculate the time a vehicle has remained in each location, to establish, which area of the site, the vehicle parked.

The burden of proof begins with the operator to show it issued the PCN correctly. If they do that by providing ANPR images that support its version of events, the burden of proof then passes to the appellant. If the appellant provides a version of events or evidence that then casts doubt on the legitimacy of the ANPR technology, it is then up to the POPLA assessor’s judgement as to whether this is sufficient to show the technology was not working. Evidence of inaccuracy can come in a number of forms, including the appellant’s explanation of events. The appellant has disputed the ANPR evidence and in their appeal to POPLA, they have provided ANPR records, which they say demonstrate that the system is unreliable and comments about the position of the cameras.

While I acknowledge that the operator has provided ANPR images from the date of the contravention, it has failed to rebut the appellant’s grounds of appeal in relation to the reliability of the system or provide further ANPR records to show the vehicles movements throughout the site on the date of the contravention. I am therefore not satisfied that the operator has fully rebutted the appellant's grounds of appeal. As the burden of proof lies with the operator, I consider it has failed to discharge the burden of proof incumbent upon it. I am therefore not satisfied that the contravention occurred. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal. While I acknowledge the appellant has submitted further grounds of appeal in support of their case, as I have allowed this appeal for other reasons, I do not consider it necessary to consider them further.

Umkomaas

Nice result. I don't think I've seen this kind of decision before:

While I acknowledge that the operator has provided ANPR images from the date of the contravention, it has failed to rebut the appellant’s grounds of appeal in relation to the reliability of the system or provide further ANPR records to show the vehicles movements throughout the site on the date of the contravention. I am therefore not satisfied that the operator has fully rebutted the appellant's grounds of appeal. As the burden of proof lies with the operator, I consider it has failed to discharge the burden of proof incumbent upon it. I am therefore not satisfied that the contravention occurred. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal.

On the other hand, how can forbidding signs possibly form a contract?

The operator has provided photographic evidence of the signage in place in the car park, which states: “Delivery Vehicles Only” and “Strictly No Parking. Failure to comply with the terms & conditions will result in a Parking Charge of £100”. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 09:02 and exiting at 09:37, totalling a stay of 35 minutes. As no parking is permitted in this location, the PCN has been issued because the appellant did not gain the appropriate permit/authorisation, in accordance with the terms and conditions set out in the signage. On the face of the evidence, I consider it looks like there is a contract between the driver and the operator, and the evidence suggests the terms have been breached. 

But, a win is a win, well done @thegentleway!👍

KC4499

Hi All
Just a word to let everyone know that (despite teh fact that I was late to the party with my appeal, and had provided full details etc), I was still successful with my POLA appeal. My advice to all to stick to your guns and don't give up!!! Plus I wont be going back to Stanmer Park again!!! I am very grateful to everyone who has helped, this board has been amazing. Thanks for the support, especially to @Coupon-mad
Regards to all and don't let the b------- get away with it!

Coupon-mad

Brilliant! 

Come back each week to check if the Government Consultation is open, because people like you will make a difference, as I said here:

https://forums.moneysavingexpert.com/discussion/comment/78462318/#Comment_78462318

ZINXYX

ZINXYX said:

Thanks a lot. You have been so very helpful.
Complaint sent.

Hi good people, I have got a response to the complaint. Incredible, please see below.

Your complaint about POPLA

 

Thank you for your email received 1 July 2021 which was passed to me by the POPLA team as I am responsible for responding to complaints.

I note from your correspondence that you are unhappy with the decision reached by the assessor in your appeal against Britannia Parking Group.

POPLA is an impartial and independent appeals service and we do not act either for the parking operator or the appellant. It is important to explain that it is not our remit to source evidence and documents from either party in support of their submission and our decisions are based on the evidence received from both parties at the time of the appeal. We cannot consider further evidence after the appeal has been completed.

We offer a single stage determinative process and we would not change a decision because either party disputes the assessor’s decision. However, we may consider an appeal if there has been a procedural error, for example – if we failed to consider evidence provided by the motorist.

 

You advise that the assessor has made a factual error of fact by stating that the Parking Charge Notice was issued for “Failed to make a valid payment” on 20 February 2021.

 You explain that in support of this, Britannia Parking Group submitted evidence of the payment machines transaction logs, but these are from the 19 February 2021.

 I note your comments, and while I agree that the assessor has not addressed this within their assessment, on reviewing your case, I do not consider this issue to have any impact on the outcome of the appeal.

 In this instance, Britannia Parking Group issued the Parking Charge Notice for failing to make a valid payment on the day in question, 20 February 2021. While the online transaction report provided by the operator is for the 19 February 2021, on reviewing your appeal, I note that you have never disputed the reason for issue of the Parking Charge Notice or advised that payment was made on the day of the parking event, 20 February 2021.

 This date is confirmed in the images provided by the Automatic Number Plate Recognition cameras which monitor the car park.

 As such, while I accept that the assessor should have addressed this within their decision, as advised, I do not consider this to have any impact on the outcome of the appeal as there is no evidence to suggest that a payment was made on 20 February 2021.

In order to improve the quality of future appeal decisions, I will, of course provide the relevant feedback to the assessor. However, as all of the evidence provided has been considered, no procedural error has occurred and therefore, the outcome will not change.

I have reviewed the assessor’s decision and I am satisfied that based on the evidence provided, the outcome reached is correct. As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.

 

Our involvement in your appeal has now concluded. That said, you are of course, entitled to pursue matters further. For independent legal advice, please contact Citizens Advice at: www.citizensadvice.org.uk or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).

 

In closing, I am sorry that your experience of using our service has not been positive. We have reached the end of our process and my response now concludes our complaints procedure. I trust you will appreciate that there will be no further review of your complaint and it will not be appropriate for us to respond to any further correspondence on this matter.

 

Yours sincerely

 

Paul Garrity

POPLA Complaints Team