POPLA Decisions

Essjaythegreat

Parking charge from ParkingEye

Decision

Unsuccessful

Assessor Name

Michael Pirks

Assessor summary of operator case

The operator has issued the parking charge notice (PCN) due to the vehicle remaining at the car park for longer than the stay authorised, or without authorisation, in accordance with the terms and conditions set out in the signage.

Assessor summary of your case

The appellant states that they were parked on the site to use the gym, which allows them extra parking time, totalling four hours. The appellant goes on to say that they were unable to register their vehicle at the time as the terminal was faulty. The appellant says that they have provided evidence of their membership to the operator however, the operator has rejected the appeal under section 17 of the British Parking Association (BPA)’s Code of Practice. The appellant has provided evidence of a data base showing they attended the gym on the date in question and photographic images of the terminal showing as faulty, in support of the appeal.

Assessor supporting rational for decision

The appellant has identified as the driver of the vehicle and as such, I am considering their liability for the PCN as the driver. When parking in a car park that is subject to specific terms and conditions, a motorist who uses the site does so under contract with the parking operator. The terms and conditions should be stipulated on the signs displayed within the car park to allow the motorist to decide if they wish to accept or not. In assessing this case I have reviewed the signage and the terms state: “Customer Only Car Park… For use only whilst on site…2 hours max stay. No return within 2 hours…The Gym Group members must enter their full, correct vehicle registration into the terminal at reception to receive an extra 2 hours…Failure to comply with the terms & conditions will result in a Parking Charge Notice of £100…” The operator has provided Automatic Number Plate Recognition (ANPR) images of the vehicle, entering the car park at 17:56, and exiting at 20:10, totalling a stay of two hours and 14 minutes. 

The operator has provided evidence of a vehicle exemption data log, showing that no parking time was registered against vehicle registration on the date in question. The appellant states that they were parked on the site to use the gym, which allows them extra parking time, totalling four hours. The appellant goes on to say that they were unable to register their vehicle at the time as the terminal was faulty. The appellant has provided evidence of a data base showing they attended the gym on the date in question and photographic images of the terminal showing as faulty, in support of the appeal. Having considered the evidence, the vehicle was parked on a part of the site that was designated for permit holders only where the appellant was responsible to register for extra parking time on the devices provided, following the two-hour maximum stay period. According to the data log provided, there is no record of the appellant’s vehicle registration for the date in question. As such, the no permit has been obtained to cover the appellant’s stay period and the PCN has been subsequently issued. I have considered the appellant’s evidence of the terminal images however, no error messages or faults are displayed on the terminal therefore, I am unable to determine whether the appellant was prevented from registering their parking stay. Furthermore, the images are not date stamped to the date of contravention and as such, I cannot determine whether this evidence is a true representation of the events from the date in question. 

The appellant says that they have provided evidence of their membership to the operator however, the operator has rejected the appeal under section 17 of the British Parking Association (BPA)’s Code of Practice. The British Parking Association (BPA)’s code of practice sets the standards by which its members must abide by. In order for the operator to show that it has correctly issued the parking charge, it must demonstrate to POPLA that it has considered the appellant’s grounds of appeal in accordance with the guidance set out within Section 17 of the British Parking Association’s (BPA) Code of Practice. Section 17 refers to the fact that modern technology is being used more frequently by parking operators to aid them in management of a car park which requires a motorist to correctly enter their vehicle registration details at a pay and display machine, to validate their parking session or at a validation terminal inside the location in instances where parking is offered at a reduced rate or free of charge. 

The BPA states further in section 17.4B that in such instances, the expectation is 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 Vehicle Registration Mark (VRM) or were a legitimate user of the car park (eg a hospital patient or a patron of a restaurant). 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, 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 a 14-day period from when the keying error was identified before reverting to the charge amount at the point of appeal. Within the initial appeal, the appellant has provided evidence of a database to show that they were a valid user of the gym at the time of the parking event, which the operator has identified as a potential keying error. Based on this evidence, the operator subsequently offered to reduce the parking charge to £20.00 within a 14-day period, as part of their response dated 17th August 2021. On this occasion, I am satisfied that the operator has considered section 17 of the code of practice as the appellant has rejected this offer and referred the matter to POPLA. 

I have considered the appellant’s evidence of the gym database and whilst I do not dispute that they were on the site to use the facilities, it is the motorist’s responsibility to ensure they have complied with the terms and conditions for their stay. In this case, by failing to have the relevant authorisation to cover their duration of stay, the appellant has accepted the potential consequence of receiving a PCN. As such, I conclude the PCN has been issued correctly. Accordingly, I must refuse this appeal.

tboo

For some reason, you seem to have started 2 threads for the same topic.

Either delete it yourself if you are able to or ask a moderator to delete this thread or do not reply here and let it die.

The other live thread with replies.

https://forums.moneysavingexpert.com/discussion/comment/78741568#Comment_78741568

ETA

Oops, seems that the advice was to post here in the Popla decisions

I do apologise OP. I didn't read the title.

Greciansecfc68

Hi all

Here is the result of my unsuccessful appeal to Popla. Any advice? 

Decision

Unsuccessful

Assessor Name

Robert Andrews

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due only a partial payment made.

The appellant’s case is that the operator has failed to comply with the data protection ICO Code of Practice where it is applicable to ANPR cameras. They state a breach of data protection has occurred in line with the British Parking Association (BPA) Code of Practice, section 21.4 which states that operators must follow guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras. 

They have requested a privacy impact assessment in line with the ICO to evaluate the use of ANPR cameras. 

They also state the signage in the area does not refer to the keepers right to a Subject Access Request (SAR) They also state that the Notice to Keeper is not enforceable as the operator has not shown they are pursuing the driver. They state that POPLA must be confident who the driver is and no assumption can be made. They state that as the keeper of the vehicle, it is their right not to name the driver on the date of the contravention.

 They state that the signage in the car park is not prominent, clear or legible from all parking spaces meaning it is insufficient. They state the signage does not indicate an agreement of the parking charge and therefore is not saved by the ParkingEye Ltd v Beavis case. They state that as the signage is not clear and does not use the large font which swayed the judges in the Beavis case, a parking contract could not have bene entered. They also state this indicates that adequate notice could not have been given in line with PoFA. 

They have also stated that there is no evidence of Landowner authority meaning the operator is not allowed to issue PCNs on the land. They have stated that an unredacted copy of the landowner authority must be provided as evidence. They have used several previous POPLA cases as evidence for their appeal. 

In their comments, they state there is no evidence to show they were parked on the car park for the time period between 14:00 and 18:48. They state the use of the facilities on the site means they overstayed on the car park.

 They state the redacted contract is not sufficient as an unredacted contract was requested as evidence and this omits vital information. They state that a privacy impact assessment was requested as evidence to verify the use of ANPR. They also say that the operator has not addressed the issue of the SAR and that the photos are unreadable.

Assessor supporting rational for decision

The appellant has identified as the keeper of the vehicle on the day of the parking event. The operator has provided evidence to demonstrate it has complied with the Protection of Freedoms Act (PoFA. 2012) As such, I am considering the appellant’s liability for the PCN, as the keeper. 

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 in the car park, which states: “ALL DAY £8.00…FAILURE TO COMPLY MAY RESULT IN A PARKING CHARGE OF £70”. 

The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 14:00, and exiting at 18:48, totalling a stay of 4 hours and 48 minutes. The operator has provided evidence of the system used to check payments and permits for parking. The evidence shows that the appellant’s vehicle was registered on the car park between 14:16 and 18:16. 

I will now examine all the information provided to determine if it makes a material difference to the validity of the PCN. The appellant has used several POPLA cases as evidence for their appeal. Each case is different and assessed on the evidence provided by both the appellant and operator. As such, I cannot use previous cases to validate the appellant’s claims. 

The appellant explains that the operator has failed to comply with data protection and requested a privacy impact assessment in line with the IOC’s Code of Practice and section 21.4 of the BPA. Section 21.4 refers to the different types of PCN that can be issued such a Notice to Keeper or Notice to Driver. I cannot determine how section 21.4 refers to the use of ANPR cameras and data breaches and therefore cannot validate this claim. 

The remit of POPLA is to determine if a PCN has been issued correctly and we cannot request privacy assessment’s with the IOC. If the appellant wishes to raise this query, they could raise it with the IOC and BPA itself. 

The appellant has also stated that they are not liable for the PCN as the operator has not shown that they are pursuing the driver of the vehicle and therefore, the PCN is not compliant with PoFA. Section 8 (1)(e)(ii) of PoFA states, “if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver”. Furthermore, section 8 (f) of PoFA states, “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, and (ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid”. As the appellant has identified as the keeper of the vehicle and has chosen not to name the driver, the operator is within their rights to pursue the keeper of the vehicle for the PCN and I am satisfied the PCN meets the requirements of PoFA. 

They also state the signage in the area does not refer to the keepers right to a Subject Access Request (SAR). The evidence provided by the operator shows that the signage says, “Your Personal Data Personal data in the form of registration number, photographs of you and your vehicle may be obtained to ensure compliance with contractual obligations when on this Private land. The data may be retained and shared with the parties for enforcement and car park management purposes. Where a parking charge becomes due or remains unpaid an application may be made to the DVLA for the keeper’s details to allow notices to be sent through the post. You have the right to request the following relating to information we may hold about you: Infom you how and why it is processed; give you Access to it; Rectify inaccuracies; Delete it; Restrict our use; Transfer copies to third parties and Object to our processing. Under data protection law we must; verify your identity before providing information and provide you with an explanation if we do not agree with your request. You have the right to complain to the Information Commissioner’s Office at www.ICO.org.uk”. This sign clearly shows that the parking operator do offer motorists a SAR without using the actual terminology. Therefore, I am happy that the operator have evidenced that they offer this service in line with the appellant’s grounds for appeal. 

The appellant has stated that the signage in the area is not prominent, clear or legible. Section 19.3 of the BPA states,” 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.” The evidence provided by the operator shows that there are multiple signs around the car park that feature the terms and conditions. I am happy that the signage in the area meets the requirements of the BPA as they are conspicuous, legible and written in intelligible language. The terms regarding the parking charge are written in a large, bold font that stands out against the colour of the sign and is clearly prominent, The signs are in several areas, including by the payment machine and entrance to services on the site, therefore I am happy that motorists would be aware of the parking contract and it’s terms and conditions. 

The appellant has stated that the operator does not have sufficient landowner authority and therefore they cannot issue PCNs on the site. They have requested an unredacted copy of the agreement with the landowner as evidence they do have the authority of the landowner. Section 7.1 of the BPA 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.” There is also section 23.16b which states, “Witness statements were introduced as an alternative to the provision of a full/redacted landowner contract within an independent appeal evidence pack and as such these statements must be signed by a representative of the landowner or his agent, and not by a member of the operator’s staff.” 

The operator has provided a redacted and in date copy of the agreement with the land and I am happy that they have the sufficient authority to operate on the land. 

The appellant has brought up new grounds for appeal in their comments. If the appellant wished for these grounds to be assessed as part of their appeal, they should have been raised with the initial grounds for appeal. As such, I will not be assessing these claims here. 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 made a partial payment, 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

Greciansecfc68 said:

Hi all

Here is the result of my unsuccessful appeal to Popla. Any advice? 

You haven't told us which PPC this is, but I'm guessing it's TPS.

Complain again to the landowner.
Ignore the result.
Ignore debt collectors.
Wait for a court claim.
Continue on your existing thread if you need more help.

Fruitcake

tboo said:

For some reason, you seem to have started 2 threads for the same topic.

Either delete it yourself if you are able to or ask a moderator to delete this thread or do not reply here and let it die.

The other live thread with replies.

https://forums.moneysavingexpert.com/discussion/comment/78741568#Comment_78741568

The OP was asked to post their PoPLA decision on the PoPLA Decisions thread, which is exactly what they have done.

Greciansecfc68

Fruitcake said:

Greciansecfc68 said:

Hi all

Here is the result of my unsuccessful appeal to Popla. Any advice? 

You haven't told us which PPC this is, but I'm guessing it's TPS.

Complain again to the landowner.
Ignore the result.
Ignore debt collectors.
Wait for a court claim.
Continue on your existing thread if you need more help.

Fruitcake said:

Greciansecfc68 said:

Hi all

Here is the result of my unsuccessful appeal to Popla. Any advice? 

You haven't told us which PPC this is, but I'm guessing it's TPS.

Complain again to the landowner.
Ignore the result.
Ignore debt collectors.
Wait for a court claim.
Continue on your existing thread if you need more help.

Thank you.
Yes it was TPS.
Do they generally go to court or is it just letters and debt collectors?

Fruitcake

Greciansecfc68 said:

Fruitcake said:

Greciansecfc68 said:

Hi all

Here is the result of my unsuccessful appeal to Popla. Any advice? 

You haven't told us which PPC this is, but I'm guessing it's TPS.

Complain again to the landowner.
Ignore the result.
Ignore debt collectors.
Wait for a court claim.
Continue on your existing thread if you need more help.

Fruitcake said:

Greciansecfc68 said:

Hi all

Here is the result of my unsuccessful appeal to Popla. Any advice? 

You haven't told us which PPC this is, but I'm guessing it's TPS.

Complain again to the landowner.
Ignore the result.
Ignore debt collectors.
Wait for a court claim.
Continue on your existing thread if you need more help.

Thank you.
Yes it was TPS.
Do they generally go to court or is it just letters and debt collectors?

Please continue on your existing thread, not this one.

Coupon-mad

Essjaythegreat

I have considered the appellant’s evidence of the terminal images however, no error messages or faults are displayed on the terminal therefore, I am unable to determine whether the appellant was prevented from registering their parking stay. Furthermore, the images are not date stamped to the date of contravention and as such, I cannot determine whether this evidence is a true representation of the events from the date in question. 

Re this one, why did the Assessor think your evidence didn't show any fault, and did ParkingEye prove that the terminal was working for others to input their VRMs?  

garethpick

Decision Unsuccesful (all my original thread and paperwork is here: https://forums.moneysavingexpert.com/discussion/6288348/confused-as-to-what-date-i-write-to-parkingeye#latest)

Operator Information and Evidence

Submitted XXXXXXXX

Verification Code

XXXXXXXXXXXX

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

Operator Name

Parking Eye Ltd including Car Parking Partnership (CPP) - EW

Operator Case Summary

The operator didn't provide a case summary

POPLA assessment and decision

XXXXXXXXXX

Verification Code

XXXXXXXXXX

Decision

Unsuccessful

Assessor Name

XXXX XXXX

Assessor summary of operator case

The operator has issued the parking charge notice due to either not purchasing a valid pay and display ticket, by remaining in the car park for longer than permitted, or by not entering your registration details via the terminal.

Assessor summary of your case

The appellant states the operator has not shown that the individual it is pursuing is the driver and potentially liable for the parking charge. The appellant states the signs are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge.

Assessor supporting rational for decision

The appellant has identified as the registered keeper of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the keeper. 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 this contract. The operator has provided photographic evidence of the signage in place in the car park, which states: “Patrons Only Car Park…Hotel day visitors must enter their full, correct vehicle registration details into the terminal at reception upon arrival to be entitled to free parking for the duration of their stay…Failure to comply with the terms & conditions will result in a Parking Charge of: £100.” The operator has issued the parking charge for either not purchasing a valid pay and display ticket, by remaining in the car park for longer than permitted, or by not entering your registration details via the terminal. The operator has provided photographic evidence of the vehicle, entering the car park at XXXXXX and exiting at XXXXX, totalling a stay of XXXX hours and XXXX  minutes. The operator has provided evidence to demonstrate that the appellant’s vehicle was not registered on the day in question. The appellant explains that the operator has not shown that the individual it is pursuing is the driver and potentially liable for the parking charge. While I appreciate these comments, in order for the registered 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 (PoFA) 2012. 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 the strict requirements of POFA 2012 to transfer liability to the keeper of the vehicle. The appellant states the signs are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge. 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. 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…” 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…” 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.” The appellant states in response to the operator’s case file that the images of the signage are outdated and were not on site on the day they visited. While I note these comments, the appellant has not provided any evidence to demonstrate that the signage was not in place. As such, I am satisfied the evidence provided by the operator is sufficient to show there is sufficient signage at the site. I appreciate has stated within their comments that the operator should supply evidence of the planning permission, an engineer report to demonstrate the terminals were in working order and photographs of the vehicle parked in a bay on site. I can base my assessment only on the evidence presented. It is not within my remit to gather evidence for, or insist that specific evidence be provided by, either party. I am satisfied from the evidence both that the site’s terms were made clear, and that the driver breached them by failing to enter the vehicle details on site. I am therefore satisfied that the PCN was issued correctly and must refuse this appeal.

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garethpick

Any advice on whether I should continue to fight?  Might be easier to throw in the towel and pay the £100

Don't really want the hassle of more letters, County Court Summons, bailiffs, debt collectors etc. etc.