POPLA Decisions

Fruitcake

Nobody is going to read that wall of text. I know that's how you received it, but please post it with a few paragraph breaks.

Khaggis

Fruitcake said:

Nobody is going to read that wall of text. I know that's how you received it, but please post it with a few paragraph breaks.

Yy apologies, I hope this is better.

Assessor supporting rational for decision

The 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. 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 provided photographic evidence of the signage in place. The signage states “Tariff Payable at Machine or By Phone. Parking Tariffs Apply. Per Hour - £1.00. How To Pay: At the payment machine at any time before exiting the car park. Your full, correct vehicle registration will be required. Failure to comply with the terms and 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 13:46, and exiting at 14:57, totalling a stay of 01 hour and 11 minutes.

The operator has issued the Parking Charge Notice (PCN) due to not purchasing the appropriate parking time or remaining at the car park for longer than permitted. The operator provided evidence of a search for the appellants vehicle registration within the payment system, this shows a £1.00 payment was made which allows up to 1 hour of parking. Having considered the evidence, I am satisfied there is a valid contract and it has been breached. However, before concluding, I need to consider whether the appellant’s grounds of appeal challenge the validity of the operator’s claim.

The appellants case is that there was originally an issue as their friend paid for the ticket for them, inputting their registration plate as XXXXXX0 instead of the correct XXXXXXO. The appellant advised they received a parking charge notice from parking eye stating that they had not paid for their entire duration, which did not seem right. Upon investigating they noticed the above error and contacted the operator to appeal the incident. They received an email acknowledging the payment, but because they left shortly after the 1-hour cut-off time, they would still be subject to a £100 charge.

The PCN has been issued as the tariff purchased was insufficient and did not cover the total parking time. As a result of this, I will not consider the appellants advised issue with the registration as it has no bearing on the outcome of this appeal as it was not the reason for the Parking Charge Notice. The appellant advised the letter states they left at 14:57 and the ticket states they paid at 13:49 with an hour of parking. The appellant said they were back in the carpark within the hour, but by the time they had put away their shopping and set up their satnav, they left slightly past this.

The appellant advised that as parking eye is a member of the British Parking Association, its code of practise section 13.3 states "Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN." As the appellant was only 8 minutes into their "grace period" they feel they should not be receiving a fine for this. The appellant has made reference to section 13.3 of the British Parking Association (BPA) Code of Practice. Section 13.3 states that “Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.” Section 13.6 of the BPA Code of Practice goes on to state: “Neither a consideration period or a grace period are periods of free parking and there is no requirement for you to offer an additional allowance on top of a consideration or grace period.” The signage on sites states that payment can be made at any time prior to exiting the car park.

The parking time begins upon entry to the car park, and not from the time the parking ticket is purchased. As payment can be made any time prior to exiting, it is up to the motorist to calculate the duration of their stay and pay the appropriate tariff amount prior to leaving the car park. The site in question uses Automatic Number Plate Recognition (ANPR) cameras to capture vehicles entry and exit times and calculate the duration of stay. In the appellants case, the total duration of the stay was 1 Hour and 11 Minutes. This is one minute over the allocated 10 minute grace period and as set out in section 13.6 above, operators are not required to offer any additional time to this grace period. As a result of this, the appellant would have been required to pay for an additional hour as they exceeded the 1 hour tariff they paid for and did not pay for the appropriate parking time or remained at the car park for longer than permitted.

The appellant added that additionally, 8 minutes in a 1GBP per hour charge works out at around 21p. In a car park that had multiple free spaces available, they believe a 100GBP parking charge is completely unfair and disproportionate to their loss of earnings. 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 appropriately prominent and in the region of £85 and is therefore allowable. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant did not purchase the appropriate parking time or remained at the car park for longer than permitted, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

Le_Kirk

Did you mean to start your own thread/discussion?  If so copy that posting and go back to first page of the parking forum and click on "New Discussion" and past it in there with an appropriate title.  You have posted on the  POPLA outcome thread - by mistake I assume!

downliner

Le_Kirk said:

Did you mean to start your own thread/discussion?  If so copy that posting and go back to first page of the parking forum and click on "New Discussion" and past it in there with an appropriate title.  You have posted on the  POPLA outcome thread - by mistake I assume!

Apologies. My mistake. 

HelpfulHints99

Hi all.  I just had an unsuccessful appeal against Initial Parking with POPLA having followed all the great advice on here.  Obviously frustrating given the time it takes to put together a sensible appeal.  Posting here in case it's of relevance to anyone else.  To cut a long story short, it took us 11 minutes to pay for first period of parking as we needed to find a space, download a new parking app and set up account, then there was a gap of 6 minutes between parking sessions as I had no signal up a hill in the Lake District so couldn't extend the session immediately then we left within 3 minutes of arriving back on time.  The decision was that we should have added an extra hour to the end of the session to cover what I would have expected to be covered by grace periods. 

So the lesson is that if you take a bit too long to pay at the start or there were gaps between sessions or you're delayed in exiting, it appears buying an extra hour is a good defence in the event you get pinged with a ticket.  One to be aware of anyway!  Live and learn. 

I may have to admit defeat on this one as whilst I object to this cynical exploitation of motorists and parking regulations, I just don't have the time to go down the legal route with it.      

Decision

Unsuccessful

Assessor Name

Adele Ditchfield

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to unpaid tariff time.

Assessor summary of your case

The appellant has provided a word document appeal, this will be summarised only. The appellant says the British Parking Association code of practice that states there is a grace period at the start of a parking event and at the end. The appellant says they had to download the app which took over 2 minutes and a further 3 minutes 40 seconds to set up an account. They say they later attempted to extend the parking session however due to signal issues there was a 6 minute gap between the first parking time expiring and the new one starting. The appellant has requested the operator provides a copy of the landowner agreement. The appellant says the operator has not shown the individual it is pursuing was the driver. The appellant says the timings on the ANPR images are around the photos and not on the photographs, they say they close up images of the vehicle registration have no time stamp. The appellant says the ANPR cameras do not show a period of parking and is therefore not reliable or accurate. The appellant has provided evidence to support their appeal. The appellant has reiterated their appeal within their motorist comments.

Assessor supporting rational for decision

The 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 operator has provided photographic evidence of signage in the car park that states: “£2.00 per hour…pay by coin, card or app…failure to comply with the terms & conditions may result in a Parking Charge of: £100”. The operator has provided photographic evidence from Automatic Number Plate Recognition (ANPR) cameras that show the vehicle entering the site at 11:13 and exiting at 15:33, a total duration of 4 hours 20 minutes. 

The appellant says they had to download the app which took over 2 minutes and a further 3 minutes 40 seconds to set up an account. They say they later attempted to extend the parking session however due to signal issues there was a 6 minute gap between the first parking time expiring and the new one starting. The appellant says the British Parking Association code of practice that states there is a grace period at the start of a parking event and at the end. 

The British Parking Association code of practice states in section 13.3 Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN. The appellant overstayed this grace period by 20 minutes, which is not reasonable. The appellant has not stated they were delayed or prevented from leaving the car park. 

The appellant made their first payment at 11:24 which was 11 minutes after entering. This ticket expired at 13:24 and the appellant purchased their second ticket at 13:30, 6 minutes later. This makes a total so far of 17 minutes. The appellant’s second ticket expired at 15:30 and the appellant left at 15:33. This means the appellant had a total unpaid time of 20 minutes. 

Whilst a motorist cannot pay for time in the past, the appellant should have added 20 minutes at the end and paid for another hour. As the appellant has already accepted the terms and conditions they do not get free time to purchase a second ticket and the second ticket should have been purchased either before the first expired or on the expiry time. The British Parking Association Code of Practice section 13.1 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. I note the appellant’s comments about a grace period at the start however this is incorrect, there is no grace period at the start of a parking session. The British Parking Association Code of Practice section 13.1 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. After being on site for 5 minutes the appellant has entered into a contract with the operator and their parking time has started from the point of entry. 

The appellant has requested the operator provides a copy of the landowner agreement. The British Parking Association code of practice states in section 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. The operator has provided a copy of the agreement that shows they do have authority to issue PCNs on this land. 

The appellant says the operator has not shown the individual it is pursuing was the driver. The operator does not have to prove who was driving however from viewing the appellant has confirmed to the operator that they were driving on the day, therefore they are liable for the PCN. 

The appellant says the timings on the ANPR images are around the photos and not on the photographs, they say they close up images of the vehicle registration have no time stamp. The close up images do not have to be time stamped as the main photographs are, these images are to purely show the vehicle registration to show a motorist it is their vehicle. Further to this, the appellant does not dispute being on site and has confirmed they were which means there is no dispute as to whether it is their car or if it was on site. 

The appellant says the ANPR cameras do not show a period of parking and is therefore not reliable or accurate. The operator does not have to show the vehicle parked and only has to demonstrate the vehicle was on site, which it has done. I accept the appellant's evidence however the appeal cannot be allowed based on this. 

The time taken to download the app and pay did not prevent the appellant from paying for additional time. As explained in the decision the appellant should have added this on to the end and paid for an additional hour. 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. It is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant failed to pay for their full time on site, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

Fruitcake

Remember that the PoPLA decision is not binding on the motorist, meaning there is no requirement for you to pay unless a judge says so.
To the best of my knowledge, Initial have yet to take anyone to court, but of course they have six years to do so. Come back to this forum if that happens.

Lets hope the new mandatory code of practice will stamp out unfair decisions like this.

Umkomaas

Just an appalling situation. There was no intention (or action) to avoid paying for the parking. I'm sure a Judge would believe this to be too trivial to have it come to court, but do recognise the need for the research and work involved in getting it to a hearing - if (and it's a big 'if') Initial fancy their chances in court. 

If it's any consolation, I rather suspect that even if you'd paid for the second ticket immediately at the expiry time of (or even overlapping) the first, the PCN would have still been incurred. I think you'd physically have to drive out of the car park so the ANPR logged your departure, then you'd need to re-enter and start a whole new and separate parking event. 

You do know that the POPLA decision is not binding on the motorist?

Coupon-mad

Yep, don’t pay it.

A Judge would look at this more reasonably due to the time taken to download the app then to access it again to pay for extended time.

HelpfulHints99

Sincere thanks to @Fruitcake, @Umkomaas and @Coupon-mad for the additional guidance, reassurance and wise words - I appreciate you taking time to share your expertise and advice.  With all of it ringing in my ears, I feel re-energised to push back against this bullying, so will sit tight and see what happens.        

Thank you again
Kind regards
J

Umkomaas

HelpfulHints99 said:

Sincere thanks to @Fruitcake, @Umkomaas and @Coupon-mad for the additional guidance, reassurance and wise words - I appreciate you taking time to share your expertise and advice.  With all of it ringing in my ears, I feel re-energised to push back against this bullying, so will sit tight and see what happens.        

Thank you again
Kind regards
J

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