POPLA Decisions

ALIBOBSY

Posted on a new thread, but adding my decision on here:

Decision

Successful

Assessor Name

Natalie Matthews

Assessor summary of operator case

The operator’s case in the Parking Charge notice (PCN) was issued on the grounds of “Abused Patron Parking” The operator states that the signage clearly states “Customer only car park. You must remain on site at all times your vehicle remains in this car park”

Assessor summary of your case

The appellant states that the driver has not been identified and has not met the conditions of Protection of Freedoms Act 2012 (PoFA). The appellant also states that the driver did not leave the site. They have also raised a number reasons that the British Parking Association (BPA) code has been met including lack of signage and that the operator does not have the authority to issue charges on this land. The appellant also mentions that the planning permission on the site was based entirely on the site not being used as a car park. The driver provided a receipt from Aldi, as proof of purchase on the date in question.

Assessor supporting rational for decision

It is the responsibility of the operator to provide POPLA with sufficient and clear evidence to demonstrate that it issued the PCN correctly. However, in this case whilst I acknowledge the reason why the PCN was issued, I am not satisfied that the operator has adequately rebutted the appellant’s grounds. I am not satisfied that the warden has clearly identified the driver exiting the car park. They have not attached photographic evidence of the driver exiting the vehicle or exiting the car park. I acknowledge the warden’s account in the form of a notation, but that is not sufficient evidence to prove that driver left the site. I am therefore not satisfied that the PCN was issued correctly without the above-mentioned evidence and cannot conclude that the driver breached the terms and conditions of the car park. The appellant has referenced several other points within their appeal to POPLA, but I do not feel that these need to be reviewed individually based on the outcome reached. I am not satisfied that the PCN has been issued correctly, therefore I must allow this appeal.

Umkomaas

@ALIBOBSY - well done, but for some context, can you tell us the name of the parking firm please?

kolleykibber

Thank you to the forum:--

Decision

Successful

Operator Name

Local Parking Security - EW. Wye Valley Camping Symonds Yat.

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) due to Parking longer than the period paid for.

Assessor summary of your case

The appellants case is that the grace period is non-compliant with the British Parking Associations (BPA) Code of Practice. The appellant has provided a copy of their receipt for parking as evidence to support the appeal. The appellant has reiterated this point of appeal within their comments. The appellant has detailed that there are no entrance signs and the sign in the car park are not prominent, clear or legible and there is insufficient notice of the sum of the parking charge itself. There is also no marked parking bays or boundary of the venue, which appears to be an open field. The appellant has stated that there is no evidence of landowner authority. The appellant states, the Notice to Keeper does not meet the requirements of the Protection of Freedoms Act (POFA) 2012. The appellant explains, the vehicle images contained on the PCN are non-compliant with the BPA Code of Practice. The appellant details, that the charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the Consumer Protection from Unfair Trading Regulations (CPUTR). The appellant has reiterated this point of appeal within their comments.

Assessor supporting rational for decision

In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly. In order to establish whether the PCN has been issued correctly, I would need to see what the terms and conditions of the site are as well as evidence that the appellant did not adhere to those terms and conditions. The appellant has said the Notice to Keeper does not meet the requirements of POFA 2012. I note that the original PCN was a notice to driver, attached to windscreen of the vehicle, on 6th June 2021 at 16:45. This was followed up by a notice to keeper, dated 9th July 2021, sent directly to the appellant. As such, I must consider POFA 2012, Section 8, which outlines the requirements of a notice to keeper, following a notice to driver. Section 8 (c) says, “state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f)” Additionally, section 8 (g) says, “inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available” Upon reviewing the notice to driver, I can see it states, “The reduced amount of £60.00 will be accepted if payment is received within 14 days of the date of this notice”. As per section 8 (c) and (g), the notice to keeper must repeat the information, including the reduced fee, however the notice to keeper does not include this information and therefore does not meet the requirements set out in section 8 (c) and (g). As such, I must conclude that the PCN has been issued incorrectly. Any other grounds of appeal raised by the appellant do not require any further consideration as I have allowed the appeal on this reason alone. Accordingly, I must allow this appeal.

Operator Case Summary

We advise that the Symonds Yat car park operates as a pay and display system for all car park users, including blue badge holders. This is clearly stated on the signs located throughout the car park. The notices throughout the Symonds Yat car park clearly states the reasons for a parking charge notice being issued. One of these being for ‘parking longer than the period paid for’. The vehicle was displaying a purchased ticket for £2.00 on 6th June 2021 from 14.29pm and expires at 16.29pm and the parking charge notice was issued on the 6th June 2021 at 16.45pm. As the vehicle observed 10 minutes longer than the period paid for, the parking charge notice was correctly issued. The vehicle was left for a minimum of 10 minutes before the Parking Charge was issued. No faults were found or reported with the machines located within the car park on the date the parking charge notice was issued, there are four pay and display machines located within the Symonds Yat car park, all the machines accept coin payments. It is the driver’s responsibility to ensure the purchased parking ticket is for the full duration of their stay and is correct before displaying it visibly within vehicle. The tariffs in the Symonds Yat Car Park are: • £1.00 for 1 hour • £2.00 for 2 hours • £3.00 for 3 hours • £6.00 for All Day (expiry 23.59pm) If parking longer than the 2 hours, a longer duration ticket should be purchased from one of the pay and display machines located onsite. As the driver only purchased a 2 hour ticket and was parked longer than this period, the Parking Charge Notice was correctly issued. The purchased ticket expired at 16.29pm and the Parking Charge Notice was issued at 16.45pm, the vehicle was parked within the car park for a minimum of 10 minutes without payment for parking. It is the driver’s responsibility to ensure their purchased parking ticket covers them for the full duration of stay and is correct before displaying it in their vehicle. The Tariffs/Charges for this car park are very clear and displayed visibly on the signage throughout the car park. The 10 minutes has been agreed between the BPA and Local Parking Security for this particular car park due to the car park being small. The 10 minute ‘grace period’ provides the opportunity for the driver to read the signage terms and conditions and decide if they wish to continue parking within the Symonds Yat car park, if not then this gives them reasonable time to leave. As stated in the BPA Code of Practice: 13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice. 13.2 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. As stated above, as the Symonds Yat car park, 10 minutes is enough time for the driver to check the signage in the car park and at the entrance therefore we have complied with the BPA Code of practice as a reasonable grace period has been provided. Also a 10 minute ‘grace period’ is provided when a vehicle has paid for parking and the ticket has expired, giving them additional time to get back their vehicle. Contracts are confidential therefore we will not provide this. The BPA have confirmed that Witness Statements are acceptable and have approved ours. Please find this attached confirming that we have the landowner’s authorisation to manage this car park on their behalf and issue parking charge notices. The legal basis of the Parking Charge Notice is based on the contract entered by drivers who park on private land. The terms and conditions upon which the contract is based is clearly stated on all signage located throughout the car park. When parking on private land the motorist freely enters into an agreement to abide by the conditions for parking in return for permission to park, it is the motorists responsibility to ensure they abide by any clearly displayed conditions for parking. The terms and conditions for parking including the parking charges applicable are clearly stated on the signs located throughout the car park. Local Parking Security Ltd are a fully approved member of the British Parking Association and as such abide by all current legislation and regulations with regards to parking on private land. As the vehicle was parked longer than the period paid for, the vehicle was parked in breach of the terms and conditions for parking therefore the parking charge notice was correctly issued. The terms and conditions for parking including the parking charges applicable are clearly stated on the signs located throughout the car park. We advise that the appellant has stated in their appeal that ‘there will be no admissions as to who was driving’ we can confirm that the Parking Charge Notice was issued to the vehicle windscreen on the date of issue 6th June 2021, therefore the driver of the vehicle would have received the Parking Charge Notice upon returning to the vehicle after parking longer than the period paid for. As no appeal or payment was received a Reminder Notice was posted to the Keeper of the vehicles address on 12th July 2021. With regards to POFA, Our notice to Keeper clearly abides by the POFA process. POFA States (f) Warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given. (i) The amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full. Our Notice to keeper clearly states the above. A copy of the Notice to Keeper has been attached to confirm that we have followed the process of POFA correctly. The registered keeper is liable for payment of the unpaid Parking Charge Notice if they are unable to provide us with the driver’s details at the time the Parking Charge Notice was issued. Please refer to Protections of Freedoms Act 2012 Schedule for further details on this. When a patrol officer attends a car park, the first thing they are required to do is test the machines to ensure they is working correctly. The patrol officer checked the machines before issuing the Parking Charge Notice. The appellant has stated the charge is punitive and not a genuine pre-estimate of loss, we advise the terms and conditions for parking including the Parking Charges applicable are clearly stated on all signage located throughout the car park. Please find attached our Genuine Pre-Estimate of Loss as requested. Please refer to this sentence taken from the Genuine Pre-Estimate of Loss that was written by a POPLA Adjudicator- “Each appeal will always turn of its own facts but both parties should be clear that a Genuine Pre-Estimate of Loss need not be a detailed estimate for each particular case. It is not the specific loss caused by the actual breach but may include loss incurred or loss that might reasonably be incurred. However, it cannot include sums that are really the general business costs of the Operator’s car park services operation.”

Coupon-mad

Additionally, section 8 (g) says, “inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available”

Upon reviewing the notice to driver, I can see it states, “The reduced amount of £60.00 will be accepted if payment is received within 14 days of the date of this notice”.

As per section 8 (c) and (g), the notice to keeper must repeat the information, including the reduced fee, however the notice to keeper does not include this information and therefore does not meet the requirements set out in section 8 (c) and (g).

As such, I must conclude that the PCN has been issued incorrectly. 

Brilliant!  I think POPLA are wrong here but hey, it's good to read it worked in your favour (as long as the PPC doesn't complain).

My interpretation of POFA has always been that the discount doesn't have to be re-offered to the keeper if already offered to the driver on a windscreen PCN...

...but I do feel that it SHOULD be, to encourage payments at the lower rate rather than putting the keeper in a position where it's already a 3 figure sum by the time they learn about it, weeks later.

pbreaker

Decision

Unsuccessful

Assessor Name

Aimee Moulton

Assessor summary of operator case

The operator has issued a Parking Charge Notice (PCN) either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.

Assessor summary of your case

The appellant says that their stay was 105 minutes and they paid for 60 minutes of parking, but the operator says they overstayed by 45 minutes which is not acceptable according to its own signage as the first 30 minutes is free. They say the British Parking Association (BPA) Code of Practice Section 13 says there are two grace periods, one at the start of the event and one at the end, but the operator hasn't provided evidence of the grace period agreed with the landowner. In their comments, the appellant says their intended visit was less than 30 minutes, but it took longer due to queues. They say the operator confirms they overstayed the 30 minutes free, but they purchased extra time. The appellant has provided a photograph of the sign and evidence of their payment to RingGo.

Assessor supporting rational for decision

The appellant has identified as the driver on the date of the event. I will therefore be considering their liability for this PCN as the driver of the vehicle. The operator has provided photographs taken by its Automatic Number Plate Recognition (ANPR) cameras. These show the vehicle entering the car park at 10:12 and leaving at 11:57. A total stay of 1 hour 45 minutes. The operator has provided a photograph of the signage at the car park. The terms and conditions state “Parking Tariffs Apply Tariff First 30 minutes FREE If you require more than 30 minutes on site, please purchase parking via RingGo Additional 1 hour 50p Additional 2 hours £1.50”. It further states “Failure to comply with the terms & conditions may result in a Parking Charge of: £100.00”. The operator keeps a database of payments made for parking at this site. Motorists are required to enter their vehicle registrations when making payment so that it can be matched to the registrations of vehicles picked up by the ANPR cameras. It has provided a search of its records from the date of the event. The results show that the appellant purchased an additional hour on top of the 30 minutes free. As such, they were only permitted to park for 1 hour 30 minutes. On the face of it, the evidence shows that there is a contract between the driver and the operator, and this does appear to have been breached. I will now turn to the appellants grounds of appeal to consider if these make a material difference to the validity of the PCN. The appellant says that their stay was 105 minutes and they paid for 60 minutes of parking, but the operator says they overstayed by 45 minutes which is not acceptable according to its own signage as the first 30 minutes is free. In their comments, the appellant says their intended visit was less than 30 minutes, but it took longer due to queues. They say the operator confirms they overstayed the 30 minutes free, but they purchased extra time. I cannot see that the operator has claimed that the appellant overstayed by 45 minutes or overstayed the free 30 minutes. The appellant has provided a photograph of the sign which shows that 30 minutes is free and additional time must be paid. The appellant has provided evidence of their payment and the operators records also show the payment for 1 additional hour however, even with the 30 minutes free, the vehicle still remained at the car park for 15 minutes longer than permitted. The appellant says that the BPA Code of Practice Section 13 says there are two grace periods, one at the start of the event and one at the end, but the operator hasn't provided evidence of the grace period agreed with the landowner. The operator doesn’t need to prove evidence of an agreed grace period with the landowner, it must observe the grace period set out in the Code of Practice however, there is only one grace period at the end of the parking event. Section 13.1 of the Code of Practice provides for a 5 minute consideration period when a motorist enters the car park. This is to enable a motorist to leave after reviewing the terms if they decide not to park and accept the contract. The appellant did park and accept the contract and Section 13.2 states “The reference to a consideration period in 13.1 shall not apply where a parking event takes place”. A consideration period can only apply if there is no parking event, and a grace period can only apply if there is a parking event. Therefore, a motorist cannot possibly have both. Section 13.3 of the Code of Practice 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”. The operator confirms that a 10 minute grace period is offered however, the appellant exceeded this, as their total overstay was 15 minutes. The terms of the contract which the appellant accepted by parking state “Duration of stay calculated by ANPR cameras from the point of entry to the point of exit”. The total duration was 1 hour 45 minutes. Section 13.6 of the Code of Practice states “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”. As the appellant exceeded their paid time and the grace period, the terms were breached. Therefore, I can only conclude that the PCN was issued correctly. Accordingly, I must refuse this appeal.

Umkomaas

@pbreaker - is this related to your (now closed) thread about Smart Parking?  You left that thread hanging, not coming back on for any further advice on making an appeal to POPLA. This should have been so easy based on Smart not being able to hold the keeper liable because they do not invoke PoFA to do so. Seems like your appeal was largely based on mitigation - a no hoper at POPLA. 

You do know you are not compelled to pay the charge, despite a POPLA loss?  Only a Judge can tell you to do so, and Smart are very reticent in placing single ticket charges in front of one.

pbreaker

Umkomaas said:

@pbreaker - is this related to your (now closed) thread about Smart Parking?  You left that thread hanging, not coming back on for any further advice on making an appeal to POPLA. This should have been so easy based on Smart not being able to hold the keeper liable because they do not invoke PoFA to do so. Seems like your appeal was largely based on mitigation - a no hoper at POPLA. 

You do know you are not compelled to pay the charge, despite a POPLA loss?  Only a Judge can tell you to do so, and Smart are very reticent in placing single ticket charges in front of one.

No that's a new PCN they are 4 in total 3 cancelled and they rejected the appeal for the last one and then went POPLA (the above one )

Coupon-mad

There was a 100% nailed on POPLA win awaiting any registered keeper against PPCs like Smart, Highview, CP Plus, Horizon, etc., as none of them use the POFA 2012 so they can't hold keepers liable.  Such a shame that this appellant appealed and identified themselves as the driver.

A consideration period can only apply if there is no parking event, and a grace period can only apply if there is a parking event. Therefore, a motorist cannot possibly have both. 

Yeah right...!  I mean come on, anyone can see that's sharp practice by the parking industry.

....luckily, the Government hasn't fallen for that (a change that only got introduced in the BPA CoP in 2020) and as we all saw in the draft statutory PAS232 CoP released to the public last year, normal service will at least be restored with a consideration period and a grace period again, to arrive and leave.

None of that time, including time reading the t&cs, is PARKING time.  it's time spent in moving traffic plus a period to consider a contract and to download an app or find the right money to make payment.  Which might also involve waiting in a queue first. 

Sit tight.  No panicking or paying.  If you move house within six years, email Smart to tell them to erase any out of date address but apart from that, ignore debt demands.

Come back to this case, only if they sue but keep ALL letters as evidence and the POPLA evidence pack.  If you can no longer access Smart's evidence pack to POPLA, email POPLA and ask for a copy by email, under your SAR rights.

If Smart try to sue (very rare) then a Judge would be reasonably persuaded by the above argument PLUS the new statutory CoP, which by 2022 will be available for people to use as evidence in court of good practice and to illustrate exactly why the BPA and IPC CoPs have had to be consigned to history.

mrh74

Successful appeal, Civil Enforcement not abiding by POFA act. Thanks for all the assistance and advice.

Original Post https://forums.moneysavingexpert.com/discussion/comment/78566288#Comment_78566288

Decision

Successful

Assessor Name

Andy Prescott

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for payment must be made in accordance with the terms on the signs.

Assessor summary of your case

The appellant’s case is that the operator has not complied with the requirements of Schedule 4 the Protection of Freedoms Act (POFA). The appellant has uploaded a document with extensions to their grounds in which they also challenge landowner authority.

Assessor supporting rational for decision

It is the parking operator’s responsibility to demonstrate to POPLA that it has issued a PCN correctly. In this case the appellant has challenged if the operator can pursue them for this PCN as they have advised it was not issued in accordance with POFA. I have reviewed the operator’s submission and have seen no details to show the appellant has ever confirmed they were the driver. The PCN was issued on 28 July 2021 in respect of an alleged contravention on 22 June 2021. The appellant has challenged if the PCN has been issued in the relevant period in this case. Paragraph 9 of POFA sets out the requirements for issuing a Notice to Keeper. Sub paragraph 5 states: “The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended”. Having reviewed the PCN issued in this case I must note that it is not compliant with the requirements of POFA and has been issued well outside of the relevant period, therefore, the operator is not able to pursue the registered keeper for the PCN in relation to this parking event. As such, I must conclude this PCN was not issued correctly. Accordingly, I must allow this appeal.

cambi0

Successful appeal, Mr Prescott applied common sense to the BPA grace periods where Initial Parking refused to even mention them. Thanks for all the info.

original thread https://forums.moneysavingexpert.com/discussion/6291575/initial-parking#latest

Decision
Successful

Assessor Name
Andy Prescott

Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) for Unpaid Tariff Time.

Assessor summary of your case
The appellant states the operator has not complied with the British Parking Association (BPA) Code of Practice in respect of grace periods. The appellant states the entrance signs are inadequately positioned and 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. The appellant states the operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. The appellant states there is no evidence the operator is authorised to issue PCN’s for this site. The appellant states the operator is in breach of the Information Commissioners Office Code of Practice applicable to Automatic Number Plate Recognition (ANPR). The appellant states there is no evidence of the period parked. The appellant states the notice to keeper does not meet the requirements of the Protection of Freedoms Act (POFA). The appellant states the ANPR system is neither reliable nor accurate. The appellant states the signs fail to warn drivers what ANPR is used for. The appellant has presented full extensions to their grounds in a separate document. The appellant has stated various reasons for why the ticket purchased took up to 9 minutes 12 seconds from the vehicle’s point of entry. The appellant has provided evidence of the ticket purchased, the PCN and correspondence from the original appeal to the operator.

Assessor supporting rational for decision
It is the parking operator’s responsibility to demonstrate to POPLA that it has issued a PCN correctly. In this case the appellant has presented a plethora of technical and somewhat tangential grounds that I have been unable to fully attribute to the parking event in question. Nevertheless it is my duty to assess this event as I would for any appeal and it is crucial for me to formulate an understanding of the parking event, irrespective of the absence of a straight forward, first person account of it. I note the appellant has provided a hypothetical timeline of events from the point of the vehicle’s entry, and in this they have alluded to a 9 minute 12 second period in which to purchase a ticket, the timings of which are consistent with the evidence of the ticket they have subsequently provided. I do consider it is likely this site was busy at the time of this event for reasons of tourism, be these increased due to the global pandemic, or simply because it was in the height of summer. The car park in question is monitored by ANPR cameras.
The operator has provided photographic evidence of the vehicle entering the car park at 12:51. The operator’s and appellant’s evidence of payment show this was completed at 13:01 and the ticket advised on an expiry time of 15:01. I must consider this payment was completed in a reasonable time after entry
and I do recognise the appellant’s description of events, regardless of the manner in which they have been presented. The vehicle was seen to be leaving the site at 15:08, 7 minutes after the expiry of the appellant’s ticket. In the BPA code of practice paragraph 13.3 states: “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”. In this case I must uphold the appellant’s grounds in relation to grace periods as I am satisfied the ticket was purchased within a reasonable time after entry, I consider it was reasonable for the motorist to note the expiry time of 15:01 on face value and they subsequently left within 10 minutes of this expiry time. As such, I cannot conclude the PCN has been issued correctly and I must allow this appeal. Whilst I note the appellant has raised other grounds in this case, as I have allowed the appeal for the reasons above, I will not be considering them.